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INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW

INSTITUT INTERNATIONAL DE DROIT HUMANITAIRE

ISTITUTO INTERNAZIONALE DI DIRITTO UMANITARIO

THE CONDUCT OF HOSTILITIES Revisiting the Law of Armed Conflict

100 Years after the 1907 Hague Conventions and

30 Years after the 1977 Additional Protocols

edited by

Gian Luca Beruto

Assistant to the Secretary-General

with the collaboration of Ms Shirley Morren, Librarian

Current Problems of International Humanitarian Law

Sanremo, 6-8 September 2007

- PROCEEDINGS -

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ACKNOWLEDGEMENTS / REMERCIEMENTS / RINGRAZIAMENTI

BRITISH RED CROSS

CAMERA DI COMMERCIO DI IMPERIA

CASINÒ DI SANREMO

COMUNE DI SANREMO

CONFARTIGIANATO DI IMPERIA

CONFINDUSTRIA DI IMPERIA

CROCE ROSSA ITALIANA

CROIX-ROUGE MONÉGASQUE

INTERNATIONAL COMMITTEE OF THE RED CROSS

ITALIAN MINISTRY FOR FOREIGN AFFAIRS

NETHERLANDS MINISTRY OF FOREIGN AFFAIRS

PROVINCIA DI IMPERIA

SWEDISH MINISTRY FOR FOREIGN AFFAIRS

SWISS FEDERAL OFFICE FOR MIGRATION

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The International Institute of Humanitarian Law is deeply grateful to the Dragan European Foundation for its precious collaboration which has led once again to the publication of the proceedings of the annual Round Table on current problems of international humanitarian law.

In its efforts to expand its editorial activities the Institute has published several works

in the past months, in particular, the proceedings of: “The Proliferation of Weapons of Mass Destruction and International Humanitarian Law”; “The Convention on Chemical Weapons between Disarmament and International Humanitarian Law”; “International Peace Operations and International Humanitarian Law”, organised with the financial support of the Italian Ministry of Foreign Affairs.

The present volume further enriches the collection which was begun in 1999. It covers

the records of the Round Table that took place from 6th to 8th September, 2007 in Sanremo on the theme: “The Conduct of Hostilities. Revisiting the Law of Armed Conflict 100 Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocol”.

The subject matter has been carefully chosen. The geo-political scene in the post-Cold

War period has introduced new types of conflicts. Inter-ethnic and inter-religious clashes have multiplied. New types of weapons have appeared. New treacherous threats have gained momentum beginning with international terrorism. The Armed Forces have been called to tackle tasks beyond national borders, often differing a great deal from the tasks of a traditional soldier and no longer limited to the actual conflict itself.

The Hague Conventions are 100 years old. The Additional Protocols to the Geneva

Conventions are 30 years old. Are these instruments still appropriate? How can their respect be guaranteed in the face of such unprecedented atrocities and violence? Has the time come to update the present body of norms of international humanitarian law?

This Round Table has tried to find answers to these questions through serious debates,

conducted in an informal atmosphere, in which political personalities, legal experts and military operators from all over the world have taken part.

Ambassador Maurizio Moreno President, International Institute of Humanitarian Law

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ORGANISING COMMITTEE COMITATO ORGANIZZATORE

COMITE’ ORGANISATEUR

Chair Dr. Rolph K. JENNY, Vice President, IIHL Members Dr. Stefania BALDINI, Secretary-General, IIHL Prof. Yoram DINSTEIN, Member of the Council, IIHL Dr. Philipp SPOERRI, Director for International Law and cooperation within the Movement, ICRC Prof. Frits KALSHOVEN, Honorary Member, IIHL Mr. Daniel KLINGELE, Head, Human Rights and Humanitarian Law Section, Swiss Ministry of Foreign Affairs Dr. Jean François QUEGUINER, Legal Adviser, Legal Division, ICRC Prof. Michel VEUTHEY, Acting President, IIHL

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TABLE OF CONTENTS / TABLE DE MATIÈRES / INDICE

OPENING SESSION

Michel VEUTHEY

Acting President of the International Institute of Humanitarian Law (IIHL)

MESSAGGIO DEL PRESIDENTE DELLA REPUBBLICA

Giorgio NAPOLITANO

WELCOME STATEMENTS

Claudio BOREA

Sindaco di Sanremo

Gianni VERNETTI

Sottosegretario di stato agli affari esteri, italia

Daniel KLINGELE

Ministry of Foreign Affairs, Switzerland

Liesbeth LIJNZAAD

Legal Adviser, Ministry of Foreign Affairs, Netherlands

Massimo BARRA

Presidente della Croce Rossa Italiana

KEYNOTE STATEMENT

Jacques FORSTER

Vice-President of the International Committee of the Red Cross

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THE CONDUCT OF HOSTILITIES FROM AN ETHICAL,

HISTORICAL AND FUTURE PERSPECTIVE:

INTRODUCTION TO THE TOPIC OF THE ROUND TABLE

From the 1907 Hague Conventions to the Additional Protocols of 1977 and beyond – Historical

Evolution of the Law on the Conduct of Hostilities

Philip SPOERRI, Director for International Law and Cooperation within the Movement, ICRC

Le droit de La Haye, la neutralité et le transit ferroviaire par la Suisse pendant la Seconde Guerre

mondiale

Roland HAUDENSCHILD, Secrétariat Général, Bibliothèque Militaire Fédérale et Service

Historique, Suisse

COMBATANTS AND MILITARY OBJECTIVES VERSUS

CIVILIAN PERSONS AND OBJECTS

The Notions of Combatant, Armed Group, Civilians, and Civilian Population in International Armed

Conflicts

Kenneth WATKIN, Judge Advocate General of the Canadian Forces

The Notions of Civilians and Fighters in Non-International Armed Conflicts

Jann K. KLEFFNER, Assistant Professor of International Law, University of Amsterdam

Civilian Direct Participation in Hostilities under International Humanitarian Law

Nils MELZER, Legal Adviser, ICRC

Military Objectives

Hays PARKS, Associate Deputy General Counsel, United States Department of Defense

The Definition of Military Objectives

Knut DÖRMANN, Head of the Legal Division, ICRC

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METHODS AND MEANS OF WARFARE

Human Shielding from the Attacker’s Perspective

Michael N. SCHMITT, Stockton Professor of International Law, United States Naval War

College

The Principle of the Prohibition of Superfluous Injury or Unnecessary Suffering

Théo BOUTROUCHE, Faculty of Law, University of Geneva

Weapons causing Post-Conflict Effects on Civilians

Ronald BETTAUER, Deputy Legal Adviser, U.S. Department of State

Mines, Cluster Bombs, Explosive Remnants of War (ERW)

Knut DÖRMANN, Head of the Legal Division, ICRC

Discussion on Means and Methods of Warfare likely to cause Superfluous Injury and Unnecessary

Suffering

Erwin DAHINDEN, Director of International Relations of the Swiss Armed Forces, Member of

the IIHL Council

THE CONDUCT OF HOSTILITIES AND SPECIAL PROTECTION REGIMES

The conduct of hostilities and their impact on humanitarian assistance

Arne DAHL, Judge Advocate General of the Norwegian Armed Forces

IMPLEMENTING THE LAW ON THE CONDUCT OF HOSTILITIES

Implementation of the Law on the Conduct of Hostilities by Armed Forces: A View from the Inside

Charles GARRAWAY, Lt. Colonel (ret.), Member IIHL, United Kingdom

Compensation for the Victims of Chemical Warfare in Iraq and Iran

Liesbeth ZEGVELD, Leiden University, Netherlands

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CONCLUSION OF THE ROUND TABLE

The Contemporary Challenges to the Law on the Conduct of Hostilities

Dr. Philip SPOERRI, Director for International Law and Cooperation within the Movement,

ICRC

Considerazioni finali

Giovanni Lorenzo FORCIERI, Sotto Segretario di Statto, Ministero di Difesa, Italia

Closing Remarks

Michel VEUTHEY, Acting President, IIHL

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OPENING SESSION

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Michel VEUTHEY

Acting President

International Institute of Humanitarian Law (IIHL)

Monsieur le Secrétaire d’Etat,

Excellences,

Monsieur le Président du CICR,

Monsieur le Maire,

Chers Amis,

A l’ouverture de cette Table Ronde marquant le 100e anniversaire de la Conférence de

la Paix de La Haye et le 30e anniversaire des Protocoles additionnels aux Conventions de

1949, permettez-moi de vous souhaiter la bienvenue et de vous remercier tous d’être venus à

Sanremo pour participer à cette 30e Table Ronde et débattre d’un sujet d’une grande actualité.

Je voudrais d’abord brièvement rendre hommage au Professeur Patrnogic. Comme

vous le savez tous, il était né en 1921 à Belgrade. Il est décédé à Genève le 6 mai de cette

année. Il a été un des co-fondateurs de cet Institut et son animateur jusqu’à la fin de sa vie.

Au nom de l’Institut, je souhaiterais ici lui rendre hommage et exprimer toute notre

sympathie à sa famille. Je vous invite maintenant à vous lever pour une minute de silence ou

de prière à la mémoire du Professeur Patrnogic. Merci.

Je voudrais aussi saluer deux autres fondateurs de l’Institut présents parmi nous, le

Professeur Hingorani, de l’Inde, et le Dr. Ugo Genesio, de Sanremo.

Dans cette salle, nous avons parmi les plus grands experts humanitaires, juridiques et

militaires. Nous aurons certainement un débat juridique de très haut niveau, grâce aux efforts

du Dr. Rolph Jenny, Vice-Président de l’Institut et Président du Comité d’organisation de cette

Table Ronde, ainsi que du CICR, en tant que co-organisateur de cette Table Ronde, en

particulier du Dr. Philipp Spoerri, Directeur, Jean-François Quéguiner, Conseiller juridique, et

des autres Membres de ce Comité, le Professeur Yoram Dinstein, le Professeur Frits

Kalshoven, M. Daniel Klingele, Chef de la section des droits de l’homme et du droit

international humanitaire de la Direction du Droit International du Département Fédéral

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suisse des Affaires étrangères, sans oublier notre Secrétaire Générale, la Dottoressa Stefania

Baldini.

Nous sommes quelque 300 participants. Merci à vous toutes et tous d’être ici. Nous

voudrions, autant que possible, pouvoir engager un dialogue. Je lance donc un appel aux

modérateurs, aux orateurs, et aux intervenants dans les discussions pour limiter leurs

interventions dans le temps pour laisser à chacun un temps de parole.

Pendant ces deux jours et demi, nous allons étudier la quasi totalité des règles

applicables à la conduite des hostilités. Et nous ne devons pas oublier qu’au-delà des règles

existantes ou en élaboration, il y a d’autres considérations d’humanité qui protègent en

dernier recours tant les civils que tous ceux qui participeraient directement aux hostilités, que

la Clause de Martens a évoquées à La Haye en 1899 et 1907, et qui ont été reprises à Genève en

1949 et en 1977 et à Rome dans les Statuts du Tribunal Pénal International.

Je voudrais ici en citer le texte original français :

« En attendant qu'un code plus complet des lois de la guerre puisse être édicté, les Hautes

Parties Contractantes jugent opportun de constater que, dans les cas non compris dans les dispositions

réglementaires adoptées par Elles, les populations et les belligérants restent sous la sauvegarde et sous

l'empire des principes du droit des gens, tels qu'ils résultent des usages établis entre nations civilisées,

des lois de l'humanité et des exigences de la conscience publique. »

Cet appel aux exigences de la conscience publique et aux lois de l’humanité n’a rien

perdu de son actualité : comme en 1907, nous avons aujourd’hui des adversaires

asymétriques. Et les attaques contre des civils comme les mauvais traitements infligés de part

et d’autre à des personnes capturées nécessitent davantage que des considérations juridiques

académiques. Il faut donc insérer notre expertise juridique dans l’esprit de cette Clause de

Martens, dans l’exigence de trouver des règles d’humanité impératives pour chacun et

bénéfiques à tous, qui seraient ancrées dans les exigences universelles de l’humanité pour la

défense de la vie et de la dignité humaine, sans mettre en péril les intérêts politiques et

militaires légitimes des parties en conflit.

En vous souhaitant une Table Ronde qui comble toutes vos attentes, je voudrais

conclure par cette phrase d’Albert Camus, qui pourrait s’appliquer à notre thème de

réflexion : « Se battre pour une vérité en veillant à ne pas la tuer des armes mêmes dont on la défend »

qu’on pourrait traduire ainsi en anglais : « To fight for a truth without destroying it by the very

means used to defend it »).

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MESSAGGIO DEL PRESIDENTE DELLA REPUBBLICA ITALIANA

Giorgio NAPOLITANO

In occasione della XXX Tavola Rotonda il Presidente della Repubblica esprime

apprezzamento all’Istituto internazionale di Diritto Umanitario per la sua intense e meritoria

attività di promozione e di studio delle norme internazionali che proteggono I diritti

fondamentali delle persone nelle situazioni di emergenza.

Il tema prescelto “La condotta delle ostilità, rivisitare il diritto dei conflitti armati” a

cento anni dalla Convenzione dell’Aja e a trenta anni dai Protocolli Aggiuntivi appare di

particolare interesse e attualità alla luce dell’evoluzione dei conflitti armati e dello status dei

soggetti in essi coinvolti nel mondo contemporaneo.

Alle autorità presenti, ai relatori e a tutti i partecipanti il Capo dello Stato rivolge un

cordiale augurio di buon lavoro ed un saluto, cui unisco il mio personale.

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Claudio BOREA

Sindaco di Sanremo

Sono particolarmente onorato di portare il mio saluto personale e quello

dell’Amministrazione Comunale in occasione della XXX Tavola Rotonda organizzata

dall’Istituto Internazionale di Diritto Umanitario di San Remo intorno ai problemi

attuali del diritto umanitario.

Il mio benvenuto agli esperti, ai diplomatici, nonché a tutte le personalità

internazionali e di rilievo, quest’anno particolarmente numerose, appartenenti al

mondo accademico, politico e militare.

Questa Tavola Rotonda permetterà di affrontare nei suoi molteplici aspetti un

tema importante, quello della condotta delle ostilità, fondamento del diritto

internazionale umanitario, ma soprattutto consentirà di delinearne le possibili

evoluzioni definendone i nuovi contorni attuali.

Darà, dunque, la possibilità di riflettere anche sui mezzi e sui metodi di

combattimento fino ad arrivare ad analizzare la tematica dell’attuazione delle norme

sulla condotta delle ostilità.

Questa Tavola Rotonda si configura infatti come un appuntamento di estrema

rilevanza e di estrema attualità che focalizza l’attenzione verso uno dei più importanti

temi del diritto internazionale umanitario.

Grazie al lavoro dell’Istituto Internazionale di Diritto Umanitario, di cui il

Comune di San Remo ha il piacere di essere co-fondatore, ancora una volta sarà

possibile sviluppare un dibattito che, da un lato, permetterà di rinnovare e

promuovere idee e riflessioni, dall’altro, configurerà ancora una volta la nostra città

come importante punto di riferimento del diritto internazionale.

San Remo e l’Istituto Internazionale di Diritto Umanitario, infatti, condividono

da tempo un percorso comune basato sugli stessi valori e sugli stessi obbiettivi.

Vogliamo pertanto anche oggi ribadire la nostra volontà di intensificare, se

possibile, la cooperazione e la collaborazione con l’Istituto nell’ambito delle rispettive

sfere di influenza.

In questa occasione, però, è per me doveroso ricordare il prof. Ptrinogich

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recentemente scomparso, presidente e membro co-fondatore dell’istituto dal 1970.

L’apporto del professore già docente di diritto internazionale presso l’università di

Belgrado e di Ginevra, visit professor presso diverse università italiane, europee e

americane è stato determinante oltre che per la diffusione e il rispetto dei principi

umanitari, anche per la crescita nel tempo del ruolo dell’Istituto nel contesto

internazionale, tanto da garantirne l’indipendenza e l’autorevolezza.

Il suo lungo operato ha lasciato un segno profondo nella nostra città e ha

contribuito in modo decisivo a far identificare San Remo anche come centro del diritto

umanitario e della pace.

L’apporto del professore è stato decisivo nella creazione e nello sviluppo dello

“Spirito di Sanremo”, valore ormai riconosciuto e apprezzato a livello internazionale.

Una personalità forte e significativa che è entrata nel patrimonio storico e

culturale di San Remo, un amico della città, come lui amava ripetere nei nostri

frequenti incontri, a cui va la nostra più sentita riconoscenza.

Per ricordare la sua figura e per mantenerne viva la memoria il Comune, in

collaborazione con l’Istituto, ha pensato di istituire e finanziare, a partire dal prossimo

anno, un premio da riconoscere a personalità che si siano distinte nel campo della

protezione dei diritti umani.

Concludo infine rinnovando il mio augurio di buon lavoro e felice permanenza

a San Remo a tutti i partecipanti.

Grazie

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Gianni VERNETTI

Sottosegretario di stato agli affari Esteri

Signor presidente, sindaco della città di Sanremo, illustri ospiti e oratori; innanzi tutto

non potrei iniziare la mia breve riflessione a nome del Governo Italiano senza rivolgere un

caloroso pensiero alla memoria del Prof. Patrnogic già ricordato per il lavoro fondamentale di

questi anni.

È per me è la seconda volta che ho l’opportunità di presenziare all’apertura dei lavori

dell’annuale Tavola Rotonda dell’Istituto; la prima occasione si è verificata lo scorso anno,

poche settimane dopo l’assunzione del mio incarico come Sottosegretario agli Affari Esteri.

Se, però, ancora una volta ci troviamo tutti qui riuniti in occasione di questo evento

che costituisce una vera e propria pietra miliare dell’agenda umanitaria e del confronto, del

dibattito sui temi del diritto internazionale umanitario lo dobbiamo in gran parte alla passione

di un uomo che, con grande intelligenza e grande tenacia, ha dedicato un’intera vita a questa

attività ed a questo Istituto fino alle ultime settimane della propria esistenza. Sono quindi

onorato di rappresentare qui, oggi, ancora una volta il Governo Italiano in questa importante

Tavola Rotonda.

Nel 2007 cadono due anniversari di fondamentale importanza per il diritto

internazionale umanitario: il centenario delle Convenzioni dell’Aja ed il trentennale dei

Protocolli Aggiuntivi delle Convenzioni di Ginevra.

Le varie Convenzioni trassero alta ispirazione giuridica e morale dalla I Convenzione

di Ginevra del 1864. Esse rappresentarono il primo tentativo organico di tradurre in forma

pattizia progetti fino ad allora soltanto ideali, enunciazioni, buoni principi ma mai ancora

tradotti, mai ricoperti di quella doverosa veste giuridica necessaria affinché potessero

realmente contribuire al mantenimento della pace, alla riduzione degli armamenti in eccesso,

alla tutela delle vittime dei conflitti.

Io credo che uno dei principali e, per l'epoca, anche rivoluzionari risultati delle

Convenzioni fu lo sviluppo di regole basate sul principio secondo cui i belligeranti non

possono disporre di un diritto illimitato nella scelta dei mezzi per nuocere al nemico e nel

trattamento dei soldati feriti nonché dei prigionieri e dei civili.

Le Convenzioni dell'Aja proibirono l'uso di determinati armamenti e regolamentarono

aspetti importanti riguardanti la gestione dei territori occupati durante e dopo il conflitto

nonché il diritto alla neutralità. Esse furono, inoltre, testimoni di un primo tentativo

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innovativo di istituire un Tribunale Permanente per gli arbitrati internazionali, una delle

prime forme di legalità internazionale.

Tutti elementi che rendono questi strumenti ancora oggi incredibilmente attuali

nonostante il secolo trascorso abbia profondamente mutato la scena internazionale, i rapporti

fra gli Stati ed i rapporti di forza. Rivestono una particolare importanza anche i due Protocolli

Aggiuntivi alle Convenzioni di Ginevra del 1949 relative alle protezioni delle vittime dei

conflitti armati; a tal proposito vorrei soprattutto sottolineare la forza normativa del secondo

che impone importanti codici di condotta ai belligeranti anche in situazioni di conflitto armato

non internazionale, uno sviluppo tanto importante quanto necessario in un mondo in

continua evoluzione che vede sempre più le crisi allontanarsi da quel modello classico e

tradizionale di confronto internazionale tra Stati per i quali molti degli strumenti del diritto

internazionale umanitario furono inizialmente concepiti.

Oggi, infatti, i conflitti sono connotati da parametri molto più complessi ed incerti tra i

quali non è sempre facile districarsi sia con riferimento agli aspetti operativi e politici sia a

quelli più spiccatamente giuridici.

Detto questo colgo l'occasione per salutare anche le importanti autorità militari qui

presenti. Se noi osserviamo l'egregio lavoro che voi avete svolto in questi anni nei recenti

teatri di conflitto, penso alla Bosnia Erzegovina, penso al Kosovo, penso all'Afghanistan,

penso alla recentissima missione in Libano, guidata UNIFIL 2 dall'Italia, ci rendiamo conto

che oggi ci troviamo di fronte a conflitti con una natura profondamente mutata,

profondamente differenti, conflitti nei quali prevale e si rende sempre più necessario definire

strumenti giuridici per tutelare le popolazioni civili sempre più coinvolte in questi conflitti.

Ecco allora che l'elaborazione di una cultura giuridica internazionale, un diritto, nuovi

strumenti per il diritto internazionale umanitario non è teoria, non è accademia ma è necessità

concreta, urgente, che noi, che voi con il lavoro egregio che svolgete vi trovate ad affrontare

quotidianamente nelle aree di crisi più gravi del nostro pianeta.

Tornando alla nostra riflessione, possiamo a ragione affermare che nel nuovo quadro

internazionale i due Protocolli aggiuntivi hanno impresso una spinta determinante verso la

ricerca di una maggiore legalità internazionale in situazioni di conflitto armato.

Signori non credo si possa affrontare la tematica oggetto di questa Tavola Rotonda

senza fare un riferimento al prezioso contributo al Movimento Internazionale della Croce

Rossa di cui, infatti, oggi siamo onorati della presenza di due alti esponenti il Vicepresidente

del Comitato Internazionale della Croce Rossa, Jaques Foster, e il Presidente della Croce Rossa

Italiana, Massimo Barra.

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Il Comitato Internazionale della Croce Rossa e le Società Nazionali di Croce Rossa

svolgono da sempre una attività insostituibile di monitoraggio, in tutto il mondo, per

verificare l’effettiva applicazione del diritto internazionale umanitario e contemporaneamente

per stimolare lo sviluppo dello stesso.

Scusate questa brevissima digressione ma io ho avuto prova di quanto affermo

recentemente in Afghanistan, dove ho verificato concretamente, settimanalmente

l’insostituibile ruolo della Croce Rossa, una presenza indipendente, libera, autonoma senza

peli sulla lingua, capace di monitorare, di correggere, di criticare ma soprattutto capace di

dare quel contributo e quell’aiuto che è fondamentale per gestire aree di crisi cosi difficili.

A nome del Governo Italiano voglio, quindi, ancora una volta, ringraziarvi per il

lavoro insostituibile che svolgete con impegno, professionalità e competenza in tante aree di

crisi.

Tornando ad oggi, abbiamo apprezzato molto lo studio recentemente realizzato dalla

Croce Rossa sul diritto umanitario internazionale consuetudinario, un pregevolissimo sforzo

per cercare di colmare alcune delle lacune che ancora esistono nel diritto internazionale

pattizio. Un contributo tecnicamente efficace e importante.

Permettetemi ora due parole sulla Croce Rossa Italiana.

Nata da un secolo e mezzo, nel 1864 è una delle più antiche Società Nazionali e

rappresenta per noi italiani una di quelle certezze che rassicurano la popolazione

quotidianamente, una istituzione nelle quali i cittadini al di la delle parti, al di la delle

opinioni si riconoscono con grande affettività con sentimenti di forte riconoscibilità nazionale.

Con la sua attività quotidiana fortemente radicata sul territorio, la Croce Rossa

Italiana, anche grazie al suo nuovo presidente, ha rilanciato in maniera considerevole le

proprie attività internazionali essendo ora presente nella gran parte dei teatri di crisi che

prima ricordavo: in Medio Oriente, nei Balcani, nel Continente Africano, in America Latina. In

tutti questi teatri è parte di quell’insostituibile macchina umanitaria costituita da tutti i

componenti del Movimento Internazionale di Croce Rossa e Mezzaluna Rossa.

Signori mi onoro pertanto di rappresentare qui oggi il Governo Italiano in occasione di

un evento che costituisce sempre un momento di riflessione e approfondimento molto atteso e

di vasta risonanza; la mia presenza insieme a quella del mio collega Lorenzo Forceri,

Sottosegretario alla Difesa che interverrà alla chiusura di questa importante Tavola Rotonda

intende testimoniare l'importanza che il Governo Italiano attribuisce al diritto internazionale

umanitario, noi vogliamo da questo punto di vista trainare piuttosto che seguire il dibattito e

il confronto su questi temi.

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Precedentemente ho fatto riferimento alla I Conferenza di Ginevra del 1864 cui

partecipò un'Italia neonata, un'Italia che si era riunita solo 3 anni prima, ed è interessante

notare come uno dei primissimi strumenti di diritto internazionale firmati dall'Italia unificata

fu proprio una Convenzione umanitaria. Ma posso citare anche esempi più recenti: dalla

Conferenza di Roma del 1998, che ha sancito la nascita della Corte Penale Internazionale di

cui abbiamo largamente discusso lo scorso anno; al III Protocollo Aggiuntivo alle

Convenzioni di Ginevra del '49, fortemente sostenuto dall'Italia che figura tra i primissimi

firmatari; sino ad arrivare alla Conferenza sullo stato di diritto in Afghanistan promossa dal

Governo Italiano, dal Governo dell'Afghanistan e dalle Nazioni Unite, pietra miliare della

nostra azione internazionale in quel teatro.

Oggi, però, la mia partecipazione qui è dettata soprattutto dal profondo

riconoscimento del Governo Italiano nei confronti dell'Istituto di San Remo per il lavoro unico

che da oramai molti decenni svolge con grande capacità di innovazione per facilitare la

divulgazione e l'applicazione del diritto internazionale umanitario; il prestigio e gli alti

standard che lo hanno sempre caratterizzato rendono l'Istituto un vero gioiello tra gli istituti

di alta formazione internazionale, nonché fonte di profonda soddisfazione ed orgoglio per il

nostro Paese che lo ospita.

In questo primo anno e mezzo da Sottosegretario agli Affari Esteri ho realizzato molte

missioni e molte iniziative internazionali, sono stato presente in molte aree del mondo ed in

almeno 2 o 3 occasioni rappresentanti di governi e ministri, come è accaduto recentemente in

Asia Centrale, mi hanno chiesto se potevamo coinvolgere i loro tecnici nelle attività, offrendo

anche borse nelle attività di questo Istituto.

Quando Governi di Paesi amici con i quali si collabora e con cui si lavora chiedono e

vogliono poter formare alcuni loro tecnici e alcuni esponenti delle loro forze armate presso

questo Istituto, per noi è la miglior prova del fatto che il lavoro che quotidianamente svolgete

ha un riconoscimento internazionale al di la delle belle parole e al di la delle frasi di rito.

La Tavola Rotonda si tiene in un momento delicato per l'Istituto, che il Governo

Italiano segue costantemente da vicino, al suo termini, infatti, si riunirà l'Assemblea Generale

che sarà chiamata ad approvare il nuovo Statuto dell'Istituto e che dovrà rilanciarne le attività

dotandolo di un'organizzazione ancora più dinamica e efficiente. L'Assemblea dovrà inoltre

rinnovare le alte cariche direttive eleggendo il nuovo Consiglio il quale a sua volta nominerà

un nuovo Presidente.

A tal proposito io vorrei sottolineare tutto il mio personale supporto nonché quello

delle autorità italiane all'Assemblea ed al Consiglio nella certezza che essi sapranno deliberare

19

nella massima indipendenza e con la consapevolezza dell’importanza di rilanciare le attività

dell’Istituto, conservando e rafforzando la sua centralità in un settore, come quello dei diritti

umani, di crescente importanza per le relazioni internazionali.

In un contesto come quello attuale in cui purtroppo le situazioni di conflittualità si

moltiplicano i Governi e le Istituzioni Internazionali sono sempre più sensibili alle esigenze di

disporre di un foro indipendente di discussione, di ricerca e di formazione all’altezza dei

tempi.

Criteri di managerialità, di professionalità, di rappresentatività, anche geografica, di

collegialità e di rotazione devono sempre più trovare spazio nella gestione di un Istituto che è

chiamato ad interagire con la Croce Rossa Internazionale e le diverse Organizzazioni

Internazionali che agiscono a Ginevra, Brusselles e New York ed hanno a cuore il

consolidamento nonché la diffusione del diritto umanitario.

A testimonianza dell'attenzione che il Governo Italiano, tra i primi sostenitori

dell'Istituto, attribuisce a questo importante processo di riforma desidero sottolineare che il

Ministero degli Affari Esteri confermerà e incrementerà nei prossimi anni il proprio sostegno

a questo Istituto che per i motivi sin qui detti ritiene importante, utile e necessario.

Signori desidero infine rivolgere a tutti voi l’augurio del Governo e mio personale per

il successo dei lavori di questa XXX Tavola Rotonda organizzata dall’Istituto di Sanremo.

Buon lavoro a tutti.

20

Daniel KLINGELE

Ministry of Foreign Affairs, Switzerland

Mr. President,

Your Excellencies,

Ladies and Gentlemen,

Dear Colleagues,

It is a great honor and a real pleasure for me to welcome you on behalf of the Swiss

Federal Department of Foreign Affairs here in Sanremo to the 30th Round Table on current

issues on International Humanitarian Law. As the depository State of the Geneva

Conventions and the birth place of the ICRC, Switzerland has always considered the

strengthening and the dissemination of International Humanitarian Law as a foreign policy

priority. This can be seen in its support of many projects and initiatives, such as the Sanremo

Round Tables, that allow for an informal and free exchange of thoughts on issues related to

International Humanitarian Law. For more than 140 years, contemporary International

Humanitarian Law has set limits to the use of armed force. In 1864, the first Geneva

Convention for the amelioration of the condition of the wounded in the field laid the

foundations of contemporary International Humanitarian Law.

Thanks to the input of the ICRC which had been founded a year before by Henri

Dunant in Switzerland, the development started with the Convention of 1864 and continued

to a series of milestones, in particular with the Hague Convention, Respect in the Laws and

Customs of War on Land of 1907, the Geneva Conventions of 1949, the Hague Convention for

the Protection of Cultural Property in the Event of Armed Conflict of 1954, the Additional

Protocols of 1977, as well as the 1980 Convention on Certain Conventional Weapons and its

Protocols. All these instruments I have quoted were indeed a response to the atrocities of their

time. For instance, the four Geneva Conventions were a response to the atrocities committed

during the Second World War against prisoners of war and the civilian population, and the

Additional Protocols of 1977 were originated from the national wars of liberation in the 1960’s

and 1970’s and were all the response to the increased suffering of civilians in armed conflict

due in part to developments of weapon technology. In spite of this considerable body of law,

the international community is still today confronted with further legal and operational

challenges in the application of International Humanitarian Law (IHL) in the context of

international and non-international armed conflicts. Since the end of the Cold War, the nature

21

of the conflicts has changed and even the application of basic IHL rules can be subject to

different interpretations.

The proliferation and fragmentation of non-State armed groups, who may have little

or no regard for IHL, pose another challenge. Does this mean that IHL is not adapted to the

situation which prevails today? In the view of the Swiss Government, this is not the case. In

our view, IHL and particularly the rules of the Hague Convention and the Additional

Protocols dealing with the conduct of hostilities remain as relevant in conflicts today as they

were when they were adopted a hundred and respectively thirty years ago. The challenges

IHL currently faces have more to do with the respect, the application and sometimes also the

interpretation of certain rules in specific situations than with the existing law itself. This is

why it is of utmost importance to clarify certain notions of IHL. We will try to do this in the

next two and a half days, here in Sanremo, by revisiting the rules of IHL. The rules must be

clear to make the position of the soldier easier in the field, otherwise the law is not

enforceable. I am convinced that in this respect, this Round Table will constitute a valuable

contribution. I wish you all fruitful discussions and thank you for your attention.

22

Hundred years after the Second Hague Peace Conference

Liesbeth LIJNZAAD

Legal Adviser, Ministry of Foreign Affairs, Netherlands

Excellencies, Ladies and Gentlemen,

Let me first express my pleasure at being able to participate at this year’s Round Table,

and may I congratulate the Institute for developing such an interesting programme for the

next few days. I believe that many of the current issues in International Humanitarian Law are

on the agenda, and hope that we will all have the possibility to discuss, and indeed to deepen

our understanding of these crucial issues. It is important to have the opportunity to reflect on

the current state of the law and on the contemporary challenges, which is a reason why my

government is happy to have been able to contribute to this year’s Round Table.

Ladies and Gentlemen,

This year, the Hague Conventions on the Laws of War – perhaps I should say the

second series of Hague Conventions – are a hundred years old. The year 2007 seems filled

with seminars and colloquia to commemorate and celebrate this hundredth anniversary of the

second Hague Peace Conference.

Both the 1907 Hague Conference and its predecessor of 1899 mark a turning point in

the relationship between States. For the first time in history the intention was not to end a war

or to conclude a peace treaty, but to prevent future armed conflicts. Serious attempts were

made to codify existing rules of humanitarian law and to further regulate military conduct,

with the intention of alleviating the gruesome effects of war.

The 1907 Conference constituted an almost worldwide effort: while the 1899 Hague

Conference had been a party for the happy few – mostly the prerogative of European Powers

and their satellites – the 1907 Conference was the first and, as it would turn out, the only near-

global summit before the League of Nations era. The gathering of 256 delegates from 44 of the

57 sovereign nations of that time, attempting to lay down the fundaments of a new world

order constitutes a truly unique historic event. I recently spoke to some Latin American

diplomats who see this Conference as the very start of their participation and contribution to

the international legal system.

23

At the time the results of the Conference were criticized by some, who had expected

more concrete and direct results. Yet, I believe a group of international experts like you will

agree that it is an event worth commemorating. One could call the participants of the

Conference hundred years ago the pioneers of modern conflict prevention. The Second Hague

Conference constituted an important step to a worldwide legal order, in which international

relations were to be governed through the rule of law.

Ladies and Gentlemen,

While celebrating the many achievements of the Hague Conference of 1907, however,

we should be mindful of the many threats International Humanitarian Law faces today.

Clearly the Hague Conventions in themselves do not suffice to address current problems.

Several recent conflicts put the centennial of the Second Hague Peace Conference in the shrill

light of reality. As Christopher Greenwood stated: looking back at the ideals that were put

forward during the two Hague Peace Conferences is a “sobering experience” and in many

respects even a “depressing one”.

The observance of existing rules continues to be a matter for concern. The international

community has developed a complex set of rules applicable in situations of armed conflict

over the years, but that is not the end of the story – they prove to be a high maintenance

possession. We need to continuously ask ourselves: how can we improve compliance with

this fundamental body of rules? As we all know, the issue of compliance is especially

poignant in non-international armed conflicts. The question is how to get the different

participants in conflicts to comply with the principles of International Humanitarian Law

(IHL). This is probably more a matter of education than a legal issue, but knowledge and

understanding are key to proper application of the law.

Ladies and Gentlemen,

Today’s world, and indeed today’s conflicts, are very different from those of 1907.

Current challenges deserve our full attention and require careful study. We have a few days

ahead of us to do just that. With new problems, new solutions need to be found. Time has

shown that international law has always been able to adapt to new realities,

An important trend in that discussion is the growing variety of the actors. The debate

about the laws of war is no longer restricted to diplomats, the military and the ICRC. Civil

society has developed into an ever more influential factor in the legal debate. Individuals and

a multitude of groupings, associations and non-governmental associations take a keen interest

24

in issues related to armed conflict. Various NGOs work on issues related to the laws of war,

and they play an important role in raising the awareness of society, and of governments in

particular about the obligations under IHL. I am happy to note that concern about the proper

implementation of IHL today goes beyond the ICRC and the national Red Cross and Red

Crescent Societies, and is gaining a broad basis in society at large. Civil society has gained its

place at the table, and has clearly made the point that its concerns in these developments

ought to play a role.

This is a valuable contribution to the discussion about International Humanitarian

Law. It is a next step in an ever more democratic process in international law-making. And it

is also a trend that accords with the ideals of the Second Hague Peace Conference of 1907: to

create a worldwide legal order, in which international relations are governed by the rule of

law. That – Ladies and Gentlemen - is in itself is a good reason to celebrate!

Thank you.

25

Massimo BARRA

Presidente della Croce Rossa Italiana

Vorrei innanzi tutto associarmi al ricordo del Professore Patrnogic portando anche una

mia personale testimonianza.

Io ho avuto la fortuna da giovane di venire qui fin dalla seconda edizione di questa

Tavola Rotonda e fui accolto dal Dott. Genesio e dal Prof. Patrnogic come dei padri e questo

ha influenzato un pò anche la mia esistenza. Sono quindi affezionato alla memoria di

Patrnogic che ricordo essere stato consigliere giuridico della Federazione, della Lega sempre a

fianco del Segretario Generale e del Presidente nei momenti difficili del Consiglio dei

Governatori, come si chiamava allora e dell'Assemblea Generale della Federazione.

Vorrei che questo spirito di trasmissione, non solo di saperi ma anche di emozioni

continuasse e quindi, a chi sarà nuovo presidente dell'Istituto, raccomando a nome della

Croce Rossa Italiana di aprirsi il più possibile ai giovani. I giovani della Croce Rossa

rappresentano una realtà nel nostro paese, una forte realtà; i nostri giovani sono attivi, non

sono attivisti, forse potrebbero diventare un pò più attivisti perchè il mondo ha bisogno di

sapere qual'è la situazione dei diritti dell'uomo.

Noi non viviamo più ai tempi della battaglia di Solferino, viviamo in un mondo

globalizzato e mediatizzato. La mediatizzazione fa si che esista un nuovo potere nel mondo

che si chiama opinione pubblica ed ha le informazioni che una volta erano riservate ai governi

in tempo reale e le informazioni che ci vengono date non sono buone informazioni. Serve

quindi un contro-altare e per questo credo che la Croce Rossa non abbia solamente un ruolo

operativo ma anche un ruolo di advocacy, un ruolo di segnalazione se non di denuncia, un

ruolo di allerta, il ruolo di parlare a nome delle persone più vulnerabili, a nome di quelli che

non contano niente perchè non hanno accesso ai mezzi di comunicazione di massa.

Il fatto che si riuniscano 250 eminenti esperti di diritto umanitario non è una grande

notizia per i media, il nostro problema è trasformare queste energie in una notizia, cioè fare

opinione e credo che in questo il ruolo dei giovani possa essere di fondamentale importanza.

Quindi nell’assicurare la disponibilità della Croce Rossa Italiana ad aumentare il suo

contributo, la sua partecipazione all'Istituto, chiedo al nuovo Presidente e al nuovo Consiglio

di considerare anche questo aspetto di pubblicizzazione delle attività dell'Istituto.

Dobbiamo sapere qual'è la temperatura del mondo, 30 anni fa stavamo meglio o

stavamo peggio nei confronti del rispetto dei diritti dell'uomo e delle Convenzioni di

Ginevra? Questo potrebbe essere uno dei ruoli di questa Tavola Rotonda: dirci ogni anno

26

qual'è la temperatura del mondo, se andiamo verso il meglio o stiamo andando verso il

peggio ed avere anche il coraggio di denunciare quello che non funziona facendo magari

anche l'elenco di tutte le violazioni dei diritti dell'uomo che ci sono state nell'anno precedente.

Alcuni anni fa all'Assemblea Generale delle Nazioni Unite, Bernard Kouchner, attuale

ministro degli esteri francese, vecchio attivista della Croce Rossa, mi disse, la "Croix rouge est

vieille", la Croce Rossa è vecchia e noi dobbiamo dimostrare che non è vero, uno dei nostri

slogan è “la Croce Rossa è giovane” ma per essere giovane dobbiamo coinvolgere i giovani e

per coinvolgere i giovani li dobbiamo appassionare, dobbiamo dirgli la verità, non possiamo

essere troppo diplomatici; certo il riserbo tradizionale della Croce Rossa è un valore e mi

rendo anche conto degli effetti collaterali dannosi di un'eccesso di pubblicità ma allora qual'è

però il giusto equilibrio?

In tempi di mediatizzazione in cui la gente vede quello che succede e giudica, tra

qualche anno ci potrebbe anche rimproverare di essere stati omissivi o di essere stati troppo

timidi.

Credo, quindi, che questa potrebbe essere una agenda nella quale la collaborazione tra

l'Istituto Internazionale di Diritto Umanitario, il Movimento Internazionale della Croce Rossa

e della Mezzaluna Rossa e, per quello che ci riguarda, la Croce Rossa Italiana possa trovare

soddisfazione.

Finisco dicendo che noi abbiamo il dovere di apparire, non per vana gloria ma perché,

come diceva il sottosegretario che ringrazio per le sue parole sentite e fuori testo a favore del

Movimento Internazionale della Croce Rossa e della Croce Rossa Italiana, apparire ha un

ruolo psicoterapico perchè guardando il telegiornale si vedono solo notizie cattive, madri che

uccidono i figli, figli che uccidono i padri, teste che rotolano, uno dei pochi flash psicoterapici

di conforto per la gente è vedere una mezzaluna rossa o una croce rossa e questo per fortuna

almeno in Italia lo vediamo quasi tutte le sere al telegiornale, e quindi noi abbiamo il dovere

di apparire e voi pure, non potete essere solamente esperti in una torre d'avorio ma, a mio

giudizio, vi dovete sporcare le mani con l'opinione pubblica.

Grazie

27

KEYNOTE STATEMENT

Jacques FORSTER

Vice-President of the International Committee of the Red Cross

Ladies and Gentlemen,

The majority of casualties stemming from armed conflicts continue to be civilians. In

defiance of International Humanitarian Law, civilian persons and objects continue to be

deliberately targeted. Civilians are also all too often victims of other violations of rules on the

conduct of hostilities, including acts or threats of violence the primary purpose of which is to

spread terror among the population, indiscriminate attacks, and starvation.

The ICRC, therefore, warmly welcomes this opportunity to spend these next few days

with you looking at the law governing the conduct of hostilities. Questions engendered by the

conduct of hostilities have repeatedly received close attention within our organization. Our

work in this area is first and foremost motivated by our commitment to help ensure the

protection of civilian persons and objects against the effects of hostilities. But it is also the

result of the links between what used to be called the law of Geneva and the law of The

Hague. How can one expect protection of the injured and the sick, members of the medical

services, prisoners of war and civilian victims of armed conflict if the rules on the conduct of

hostilities are cast aside?

In line with our traditional approach, a large part of our efforts in this area have

focused on acting confidentially to make the belligerents concerned - whether States or non-

State actors - aware of violations which have come to our attention, and to do this so as to

ensure that such violations do not persist or recur. It is true that this can be a very complex

exercise. First, ICRC delegates - for obvious security reasons - are rarely the direct witnesses of

military operations and must, therefore, often rely on after-the-fact accounts of the events

affecting civilian persons or objects. Second, in order to undertake a credible analysis, we

often need access to information which is difficult to obtain because it is considered of

military interest. Third, the technological sophistication of war today sometimes requires that

data be gathered and analysed by specialists who alone are competent to determine the

validity of the arguments invoked to justify an attack or the means employed to carry it out.

We, in no way, view these challenges as grounds for inaction. On the contrary, we are

constantly improving and expanding our ability to convince the parties responsible for

28

violations of the law governing the conduct of hostilities to change their behaviour and

uphold their obligations. And even if we cannot determine with certainty that a violation of

the rules on the conduct of hostilities has occurred, we can still draw to the attention of the

belligerents the consequences of their actions in humanitarian terms.

The ICRC's mandate is not limited to simply taking cognizance of alleged breaches of

the law on the conduct of hostilities and working for that law's faithful application, or

reminding the warring parties of the human consequences of their operations. As the

"guardian" of International Humanitarian Law, we must also examine any practical problems

that may arise regarding interpretation or implementation of these norms and, if required,

work to further clarify concepts or rules. This work has become even more critical given

present-day developments in warfare. The key question, therefore, and the focus of the

remainder of this address, is 'what impact these developments in warfare may have on the

rules regulating the conduct of hostilities.

As we are all aware, war is changing. One major change is a growing shift of the use of

military force away from States to non-State entities, including groups of individuals who use

military means to pursue financial or ideological aims. We also see an ever greater

concentration of military strength in the hands of a minority of States, and simultaneously an

increasing use of violence by armed groups detached from State control, some of which have

adopted methods of warfare the primary purpose of which is to spread terror among the

civilian population. I shall not elaborate on the issues raised by this new form of warfare and

related questions on the conduct of hostilities in the context of counter-terrorism, as I

understand there will be presentations devoted to this topic.

A further change is the privatization of warfare, meaning the contracting out of

traditional wartime functions of the State and its armed forces to private military and security

companies. While the presence of these companies in armed conflict situations is not new,

their numbers have grown significantly in recent years and, more importantly, the nature of

their activities has altered. In addition to more conventional logistical support, private

military and security companies are increasingly undertaking activities closer to the heart of

military operations, including protecting military personnel and assets, training and advising

armed forces, and maintaining or operating weapons systems.

This privatization challenges the law on the conduct of hostilities, in particular the

principle of distinction. If commercial enterprises and their personnel undertake functions

intrinsically linked with the operations of war, what then is their status? In addition, it can

also be extremely difficult in practice for a belligerent to distinguish between the personnel

29

and assets of the enemy's armed forces and those of private companies which, though they

may be civilians carrying out civilian tasks, nevertheless work closely alongside the armed

forces.

War is also changing in terms of the striking inequalities, in some situations, between

the belligerents' military abilities. In other words what has come to be known as "asymmetric

warfare". This trend will most likely continue in the future as States with adequate expertise

and resources acquire an undisputed military supremacy based in large part on their use of

the latest information technology.

On the positive side, this new technology may substantially facilitate the often

complex process of identifying military objectives. Furthermore, an advanced ability to gather

information may help minimize collateral damage by allowing greater precision in

determining where and when to launch an attack. Finally, these technological advances

permit greater accuracy in the attacks themselves. All this should afford civilian persons and

objects heightened protection.

At the same time, however, asymmetry between the warring parties also poses a threat

to compliance with certain rules on the conduct of hostilities. A belligerent with far less

military strength and technical ability than its adversary is tempted to find ways to

compensate that are prohibited by IHL. In response to modern techniques of detection or

precision targeting, it may, for example, feign protected status in order to increase the chances

of success for its military operations. It may also conceal its military forces or objects among

civilians and civilian objects, thereby complicating the task of identifying legitimate targets

and greatly increasing the risks of collateral damages. Finally, the militarily weaker party may

deliberately strike civilians and civilian objects, either because such attacks - particularly in

modern societies - often engender the greatest levels of damage or simply because the

belligerent is unable to strike military personnel or installations. Use of human shields is also

more frequent in such situations.

Faced with repeated violations of humanitarian law by a militarily weaker enemy, the

militarily and technologically stronger belligerent may be tempted to relax its own standards

of protection of civilian persons and objects, despite the fact that he remains legally bound by

the prohibition of disproportionate attacks. For example, in response to an adversary who

persistently conceals combatants and military objectives among the population and civilian

objects, the militarily stronger party may gradually revise its interpretation of the principle of

proportionality and accept more incidental civilian casualties and damage. Another likely

consequence is an expansive interpretation of what constitutes "direct participation in

30

hostilities" and of the concept of military objective. Such tendencies make the civilian

population as a whole more vulnerable to the effects of hostilities.

War is also changing in terms of the domains in which it is waged. Of course armed

conflicts are still taking place in the traditional geographic theatres of land, sea and air.

However, the "operational space" of modern-day armies also includes cyberspace. Military

success is no longer limited to controlling a physical territory - it also includes mastering what

strategists have assigned the general term "information", and may also include attacks on

cyberspace and various digital information systems. Though the existing law on the conduct

of hostilities naturally applies to these new forms of combat, the question becomes whether it

is necessary to adopt new rules to govern this new virtual theatre.

The ICRC has certainly not remained passive in the face of these various challenges.

The study on Customary International Humanitarian Law undertaken under ICRC's auspices

and published in 2005 showed that most rules on the conduct of hostilities apply as customary

law to all types of armed conflicts, both international and non-international. They bind States

and non-State armed groups.

In 2003 we also initiated a process of research, reflection and clarification on the

humanitarian law concept of "direct participation in hostilities". The aim was to identify the

elements constituting the concept and to provide guidance for its interpretation in both

international and non-international armed conflict. In the framework of this process, informal

meetings of experts were organized in cooperation with the TMC Asser Institute. These

meetings brought together, in a personal capacity, legal experts from military, governmental

and academic circles, as well as from international and non-governmental organizations. A

first draft of an Interpretive Guidance on the notion of "direct participation in hostilities" was

submitted to the experts for discussion in November 2006. Publication awaits a final round of

consultation with the experts and an internal procedure of consolidation.

This process of c1arifying the concept of direct participation in hostilities has also

addressed the problem posed in this regard by the employees of private military and security

companies. More broadly, the ICRC is also working closely with Switzerland's Ministry of

Foreign Affairs, which has launched an initiative regarding private military and security

companies operating in a conflict environment. It is aimed at promoting respect for

International Humanitarian Law and Human Rights in these situations. As private military

and security companies draw closer to military operations - and irrespective of whether or not

this is a desirable development - it becomes important that they know and comply with the

rules of International Humanitarian Law governing the conduct of hostilities.

31

Finally, the ICRC participated actively in the various meetings of experts held under

the auspices of the Harvard Program on Humanitarian Policy and Conflict Research for the

purpose of drafting a Manual on Air and Missile Warfare. Much of the Manual will be

devoted to the conduct of hostilities. While taking into account the far-reaching developments

in the strategies use of air and missile technology, the ICRC feels it is crucial that this Manual

be as consistent as possible with existing treaty provisions and customary norms as well as

with other relevant instruments such as the San Remo Manual on International Law applicable to

Armed Conflict at Sea.

The ICRC believes that the challenges regarding the conduct of hostilities cannot

primarily be met by developing treaty law. In many circumstances, it is not the rules that are

at fault but the will, or sometimes the ability, of the warring parties - and of the international

community - to enforce them.

Nevertheless, the ICRC is also conscious that more work remains to be done in the

field of the conduct of hostilities. There are divergences in the interpretation of certain

formulations regarding the concept of military objective, the principle of proportionality, and

the precautionary measures required in attacks and against the effects of attacks.

Implementation of these rules could be improved and specific concepts on which they

rely better c1arified without disturbing the framework of and legal principles laid down in

Additional Protocol 1.

You are now embarking on three days of what I am sure will prove to be rich and full

discussions. We look forward to participating in these discussions, but more importantly to

listening to your views and comments, both on the conduct of hostilities in general and on the

points raised in this address. I thank you for your attention and wish you a successful Round

Table.

32

THE CONDUCT OF HOSTILITIES FROM AN ETHICAL, HISTORICAL AND FUTURE

PERSPECTIVE: INTRODUCTION TO THE TOPIC OF THE ROUND TABLE

33

From the 1907 Hague Conventions to the Additional Protocols of 1977 and beyond

Historical Evolution of the Law on the Conduct of Hostilities

Philip SPOERRI

Director for International Law and Cooperation within the Movement, ICRC

Ladies and Gentlemen,

Rules regulating the conduct of hostilities are probably as ancient as war itself. For

instance, the prohibition of direct attacks on certain specified categories of persons - including

women and children - and certain objects - such as places of worship - already existed in

antiquity. Given that the objective of this Round Table is to celebrate the anniversaries of the

1907 Hague Conventions and the two 1977 Additional Protocols, my presentation will limit

itself to the evolution of these rules over the last century.

Given the time constraints, I have also chosen to concentrate on the methods of

combat, at the exclusion of the normative framework applicable to means of warfare (which

will therefore only be referred to in passing). Particular attention will be given to the

protection of civilian persons and objects against the effects of hostilities.

Within this framework, this exposé is divided into three chronological parts:

The first segment will look at the codification of the rules governing the conduct of

hostilities in the 1907 Hague Conventions.

The second segment will analyse the several attempts to progressively develop and

adapt the law to the various technical evolutions that followed the adoption of these 1907

Hague Conventions.

Thirdly and lastly, I will focus on the contributions of the 1977 Additional Protocols to

the rules on the conduct of hostilities.

I. The Hague Conventions of 1907: the codification of pre-existing norms or real development of

the law?

Concerning the law on the conduct of hostilities, the first Peace Conference of 1899

adopted Convention (II) with Respect to the Laws and Customs of War on Land as well as

three declarations. The Second Peace Conference of 1907 worked on this base and continued

the codification of the law on the conduct of hostilities in the three theatres of war, namely

land, sea and air.

34

On land warfare, the provisions adopted by the Second Peace Conference were not

revolutionary - to say the least. The 44 participating States adopted Convention (IV) and its

annexed Regulations which basically restated – although with some additional amendments -

the provisions of Convention (II) and its annex of 1899. The key provisions of this codification

include:

The general principle that belligerents do not have an unlimited right in the means

adopted to injure the enemy (Article 22);

The prohibition of specific methods of combat, including perfidy, attack on persons

placed hors de combat, to declare that no quarter will be given and the destruction or seizure of

enemy property unless such destruction or seizure be imperatively demanded by the

necessities of war (Article 23); and,

The prohibition to attack or bombard, "by whatever means", towns, villages, dwellings,

or buildings which are undefended (article 25).

The work of the second Peace Conference was, on the contrary, quite innovative

concerning the conduct of hostilities at sea as well as on the controversial issue of

bombardments undertaken by naval vessels during armed conflict. This last point - though

debated at length during the first Peace Conference - was not resolved in 1899; therefore, the

adoption of Convention (IX) - which adapted the principles governing land warfare to the

bombardment by naval forces - was an essential contribution of the 1907 Peace Conference.

Article 1 of this instrument reiterates the principle found in Convention (IV) asserting

that the legality of an attack on a town or port depends on whether the site is defended or not.

Article 2, however, foresees an exception to this regime, and permits an attack of military

targets (including works, military or naval establishments, warships, arms depot or of war

material) independently of their location. For the first time, in Convention (IX), the test to

judge the legality of an attack was not based solely on the traditional distinction between

defended and undefended areas, but also on the eventual military utility of a target.

The introduction of this exception was explained at the time by the particular nature of

sea bombardments of military targets located on land that were not carried out for territorial

gain, but rather with the intent to weaken the enemy’s future resistance and military

capacities. With the developments in aerial warfare and long-range artillery, this last criterion

soon became the norm, supplanting all other factors.

This normative framework applicable to naval bombardments was completed with a

series of measures aimed at minimizing the damage inflicted on civilian persons and objects.

Convention (IX) stipulates, for example, that bombardment of military targets could only take

35

place after prior notice, followed by a reasonable delay, and if the local authorities failed to

destroy the target within the time fixed. Further, Article 2, paragraph 3, states that, should

military imperatives prevent the granting of a delay, “the commander shall take all due measures

in order that the town may suffer as little harm as possible”. Nevertheless, this Regulation includes

a dose of realism by exonerating the Commander of any responsibility in regards to incidental

damage inflicted through a bombardment.

Turning now to air warfare, it must be pointed out that at the end of the 19th century

plans were developed to begin using aircrafts offensively. Aware of such projects, the Russian

delegation to the First Peace Conference proposed the complete prohibition of the launching

of projectiles or explosives from balloons and other methods of similar nature. The rational for

this proposal - as memorialised by Captain Crozier, a member of the US delegation - was that,

and I quote “the persons and objects injured by throwing explosives from them may be entirely

disconnected from any conflict which may be in process, and such that their injury or destruction

would be of no practical advantage to the party making use of the machine”. Accordingly, the main

military powers adopted, in 1899, a declaration prohibiting aerial bombardment on the

grounds that the flying engine and the explosives thrown from them would be insufficiently

controllable and could prove harmful to civilian persons and objects and to neutral parties.

Initially applicable for a five-year period, this moratorium expired on 28th July 1904.

At the second Peace Conference, some representatives felt that the progress made in

aeronautics since 1899 - notably in the ability to steer these machines - rendered obsolete the

arguments invoked for their total prohibition. Therefore, opposition was expressed to the

renewal of this complete ban, especially from the Russian and Italian delegations who

proposed instead a legal regime inspired by the rules for land and sea warfare. They

suggested prohibiting the bombardment of undefended areas and which do not host factories

or warehouses that could be used by the enemy for war purposes. This position, however,

was only supported by a minority of delegations. Hence, at the end of the negotiation, a new

Declaration - almost identical to the 1899 one - again called for the total prohibition of aerial

bombardements.

The plenipotentiaries attending the 1907 Peace Conference were probably fully

conscious that this complete prohibition would soon cede in the face of military realities. The

strength of this feeling is best illustrated by the introduction of the phrase “by any means

available” in Article 25 of Convention (IV) prohibiting attacks on undefended cities, villages,

habitations or buildings. Even if Convention (IV) regulates land warfare, this expression was

36

introduced in 1907 (it is the only significant amendment to the text adopted in 1899) and

indicated that the prohibition also applied to the aerial bombardment of terrestrial objectives.

To sum up, the participants at the 1907 Peace Conference perceived, albeit confusedly,

that the legal criteria on which the protection of civilian persons and objects were based were

in the process of being rendered obsolete by the rapid technological advances in warfare. It

also appears that the negotiators of the 1907 Hague Conventions did apprehend that, at the

eve of the 20th century, the destruction of structures vital to national defence would constitute

a new dimension of warfare and would be superposed to the "classical" invasion of the

enemy. This certainly represented a fundamental change in the notion of military objective.

The new regulation proposed in Convention (IX) concerning bombardments of military

targets from the sea indeed suggests that there was such an understanding. However, these

negotiators proved unable to integrate in a global regulation all the various effects that these

new military techniques would have on the battlefield and behind the frontlines.

2. The law in pursuit of a progressive strategy: an analysis of a series of failures

As soon as the "Great War" ended, multiple endeavours were undertaken with a view

to reaffirming some fundamental principles of International Humanitariian Law (IHL), but

also to adapt regulations considered to be (at least partially) outdated. Contrary to what had

been done for the first and second Hague Conferences, after the Great War, there has been no

effort to achieve a comprehensive codification of IHL; indeed, attempts to adjust the law were

carried out piece by piece, by always focusing on a specific mean or method of warfare.

Considering the appalling practices of the main protagonists during the First World

War, the reiteration of the prohibition of the use of chemical and bacteriological weapons was

deemed a priority. Minds were also set on the adoption of a legal framework regarding

submarines, which was inspired by rules applicable to naval warfare. However, the main

challenge consisted in adapting the law to the swiftly developing military aeronautic. Indeed,

right from the beginning of the 1920’s, the spectre of military aviation as an apocalyptic device

was looming. This prompted the civil society to start campaigning for the adoption of a more

stringent regulation.

A Commission of jurists was thus nominated by the Conference on the Limitation of

Armament in Washington in 1921. The Commission was entrusted with the mandate of

drafting a Project of Rules meant to clarify and adapt the law to the new realities of air

warfare. This text, adopted in 1923, abandoned the traditional distinction between defended

and undefended towns. It also explicitly conditioned the legitimacy of an aerial attack to the

37

presence of a military objective, which was defined as "an objective whereof the total or partial

destruction would constitute an obvious military advantage for the belligerent". Finally, the project

introduced a form of prohibition of indiscriminate attacks, and repeated the obligation to

spare, as much as possible, certain specifically protected objects.

In spite of the invaluable work carried out by the Commission of jurists, no démarches

were ever performed to try and convene a Diplomatic Conference with a view to negotiating –

on this basis – a conventional instrument.

Nevertheless, the Commission's Project had a real impact. Indeed, the rules proposed

therein had a definite credibility stemming from the fact that they were drafted by an official

commission, established and approved by the world main powers, and composed of legal and

military experts. Numerous States took this project seriously enough to introduce all or at

least some of its provisions in their respective military manual. This 1923 Project also proved

an unavoidable document during the work undertaken by a Commission of eminent

international jurists summoned by the ICRC to examine the problem of the protection of the

civilian population against aerial bombardments. However, the main conclusion drawn by the

ICRC from those consultations was that only an absolute prohibition on aerial bombardments

could efficiently protect civilian populations. Accordingly, in submitting its report to the

Disarmament Conference of the League of Nations (1932), the President of the ICRC

addressed a pressing appeal to this end.

To sum up, the multiple attempts carried out between the two World Wars to regulate

air warfare could not achieve the adoption of conventional norms. It would, however, be

over-simplistic to infer from the lack of States' political will to negotiate a legally binding

instrument the absence of any norm governing the conduct of aerial bombardments. Indeed,

States' practice clearly indicated the existence of rules of customary law dealing with this

issue, at least in regards to the general principles ensuring the protection of the civilian

population and civilian objects. That being said, States were still divided on the concrete

modalities of application of those rules, notably in regards to the precise definition of a

military objective and on the ways to limit the effects of attacks to lawful targets. Even if those

divisions could never affect the validity of the principles, they left States with too wide a

margin of appreciation.

States took advantage of this margin of appreciation to try and justify strategic

bombardments campaigns which caused extensive damage to the civilian population during

the 1930’s, and also especially during the Second World War.

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At the end of the Second World War, the atrocities caused by strategic bombardment

brought resurgence in the demands aimed at conventionally prohibiting - or at least

restricting - aerial bombardment of the civilian population and civilian objects. Nevertheless,

the more the Diplomatic Conference of 1949 was approaching, the more States' opposition to

tackle the problematic related to the means and methods of warfare was growing. This

opposition can be explained by the evolution of the political context, marked by the eruption

of the Cold War, which led the main aerial powers to try and avoid a debate likely to lead to a

restriction of their margin of operation. In addition, this position was stoked by a clear and

displayed intention to avoid any debate related to the lawfulness of nuclear weapons. Further,

this position was all the more easy to support as two of the main victims of aerial

bombardments during the Second World War, that is Germany and Japan, had not been

invited to participate in the diplomatic process and were thus unable to share their painful

experience. The combination of these elements therefore contributed to progressively limit the

mandate of the 1949 Diplomatic Conference to the sole revision of the Geneva Law.

However, very early after the completion of the 1949 Geneva Conventions, the ICRC

revived the work aimed at codifying the law on the conduct of hostilities. Building upon the

work of a group of experts, the ICRC proposed in 1955 a set of articles published under the

title Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War.

This draft contained a series of very precise rules aimed at giving concrete expression to the

law concerning the protection of the civilian population and civilian objects against the

deleterious effects of air warfare. The text also proposed a prohibition of weapons that could

spread indiscriminately, mentioning to this extent incendiary, chemical, bacteriological but

also radioactive agents. This reference to nuclear weapons caused an intense polemic and in

the end, led to the renunciation of the Project during the 19th International Conference of the

Red Cross in 1957 in New Delhi.

Following this set back, the ICRC decided to change its strategy and instead of offering

a detailed set of regulations to States' approval, it tried to obtain the reaffirmation of certain

fundamental principles. This new approach proved fruitful. Indeed, at the 20th International

Conference of the Red Cross and Red Crescent in Vienna in 1965, members to the Conference

adopted Resolution 28, which solemnly declared that all governments and other authorities

responsible for armed operations during a conflict should abide by a set of minimal rules

during the conduct of hostilities.

Numerous texts adopted subsequently by the United Nations followed the same

approach, that of reaffirming general principles.

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A fresh attempt to comprehensively codify the law on the conduct of hostilities was

later carried out by the Institute of International Law. The Institute adopted on 9 September

1969 a Resolution on the "The Distinction Between Military Objectives and Non-Military Objects in

General and Particularly the Problems Associated with Weapons of Mass Destruction".

Of course, none of these resolutions were legally binding per se, but their adoption -

almost without any negative votes - represented serious signs in favour of the customary

validity of those principles. Furthermore, those resolutions were not only reaffirming the

general principles applying in classical inter-State conflicts, but were explicitly transposing

those principles in the context of non-international armed conflicts. In that sense, those

resolutions truly paved the way towards the negotiation of the Additional Protocols of 1977.

3. The Additional Protocols of 1977 and beyond

The codification of the general principles of the law on the conduct of hostilities did

not pose any difficulty in the context of international armed conflict. But the reiteration of the

general principle of distinction in Article 48 was actually reinforced by many rules with a

view to ensuring its concrete implementation. Those rules are the ones relating to the

definition of a combatant and the armed forces (Articles 43-44), of civilians and civilian

population (Article 50), and also those relating to the protection of civilians against direct

attacks and to the prohibition of indiscriminate attacks (Article 51), the general protection of

civilian objects (Article 52), and finally those on the precautions in attack (Article 57) and

against the effects of attacks (Article 58). Compared to the easy acceptance of the fundamental

principles supporting them, the adoption of those rules proved more difficult. I will not insist

here on those difficulties, which will be extensively discussed all along this Round Table.

Suffice to say for now that, despite some shortcomings in the formulation of these provisions

which complicate their implementation, their adoption had the unfathomable merit to tune in

treaty law with the military reality of this era, in particular in the area of aerial bombardment

and of war of national liberation.

In contrast to international armed conflicts, the codification of the law on the conduct

of hostilities in non-international armed conflicts proved more delicate. Indeed, even if it

reiterates the fundamental principles accruing to the immunity of the civilian population,

Additional Protocol II does not offer any definition of the latter. Further, it totally ignores the

protection due to civilian objects and never defines the notion of military objective. Finally,

the Second Protocol includes almost no other reference to means and methods of warfare. In

other words, after having argued for the impossibility of elaborating a unique legal regime

40

applicable to all conflicts, the plenipotentiaries to the Diplomatic Conference of 1974-1977

were unable to isolate beyond the general principles the specificities of the law governing

non-international armed conflict. Nevertheless, we now know that the Study on International

Humanitarian Law carried out and published by the ICRC in 2005 has since demonstrated

that nearly all the rules of the First Additional Protocol were customary, not only in situations

of international armed conflict, but also in non-international armed conflict. I will not further

insist on this particular issue as this will certainly be subject to the debates during the Round

Table.

I would like to draw three conclusions.

First, the fundamental values underlying the law on the conduct of hostilities are

timeless. The general principles on the conduct of hostilities - including the prohibitions to

cause unnecessary suffering and superfluous injury or to directly attack the civilian

population - were already present in 1907 and their codification was never really brought into

question. Those principles are obviously still applying today and they are as pertinent to

"new" types of conflicts and "new" forms of waging war as they were to the conflicts or forms

of warfare at the time when they were adopted.

Second, standing alone, those general principles proved insufficient in ensuring

adequate protection to protected persons under IHL. A more detailed regulation turned out to

be essential in order to soften the haziness always floating around the generality of a

principle. For instance, the consensus on the principle of distinction is a crucial part of IHL,

but it has only a limited significance given the absence of agreement on the precise outline of

the notions of combatant or military objective. A detailed regulation, therefore, adds an

element of stability to the law by contributing to framing the interpretation and application of

the rules inside more precise contours.

Finally, it is precisely at the time of negotiating those rules on the application of the

law on the conduct of hostilities that the strongest tensions appeared. It took 70 years of

efforts and several failures to end up – with the First Additional Protocol – to a detailed

codification of the law on the conduct of hostilities, which now complements the 1907 Hague

Conventions. Admittedly, the majority of the rules of application are widely accepted. But the

question that now arises is whether a new degree of precision for certain rules, for instance

through a clarification process, would today be necessary.

41

Le droit de La Haye, la neutralité et le transit ferroviaire par la Suisse

pendant la Seconde Guerre mondiale

Roland HAUDENSCHILD

Département fédéral de la défense, Secrétariat général,

Bibliothèque militaire fédérale et Service historique, Suisse

Le droit de La Haye

La Suisse, en tant que pays neutre, également pendant la Seconde Guerre mondiale, a

appliqué le droit de La Haye mais a été confrontée à des problèmes concernant le transit

ferroviaire par ses lignes alpines de chemins de fer. Il s’agit donc d’un élément historique

dans le contexte des Conventions de La Haye.

Entrait en vigueur pour la Suisse, le 11 juillet 1910, entre autres, la convention suivante

qui est intéressante pour cette description : la Convention V de La Haye concernant les droits

et les devoirs des Puissances et des personnes neutres en cas de guerre sur terre, du 18 octobre

1907.

Plus précisément, l’Allemagne, la France et les Etats-Unis avaient ratifié cette

convention, tandis que la Grande-Bretagne et l’Italie n’en faisaient pas partie.

La Vème Convention de La Haye précise les droits et devoirs des Puissances neutres ;

les articles suivants sont une première source à retenir concernant la neutralité et le trafic

ferroviaire :

Article 1: Le territoire des Puissances neutres est inviolable.

Article 2: Il est interdit aux belligérants de faire passer à travers le territoire d’une

Puissance neutre des troupes ou des convois, soit de munitions, soit d’approvisionnements.

Article 7: Une Puissance neutre n’est pas tenue d’empêcher l’exportation ou le transit,

pour le compte de l’un ou de l’autre des belligérants, d’armes, de munitions, et, en général,

de tout ce qui peut être utile à une armée ou à une flotte.

Article 9: Toutes mesures restrictives ou prohibitives prises par une Puissance neutre à

l’égard des matières visées par les articles 7 (et 8) devront être uniformement appliquées par

elle aux belligérants.

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La Convention du St-Gothard

Du point de vue des chemins de fer, la Suisse était encore engagée par un autre traité,

la Convention internationale entre la Suisse, l’Allemagne et l’Italie relative au chemin de fer

du St-Gothard, conclue le 13 octobre 1909 et mise en vigueur avec effet rétroactif au 1er mai

1909 (cité comme Convention du St-Gothard). La Convention du St-Gothard de 1909 remplace

des conventions plus anciennes, surtout celles de 1869 et 1871. Les articles intéressants, une

deuxième source dans ce cas, sont les suivants :

Article 2: La Suisse prendra les mesures nécessaires afin que l’exploitation du chemin

de fer du St-Gothard réponde dans toutes ses parties à ce qu’on est en droit d’exiger d’une

grande ligne internationale.

Article 3: Sauf les cas de force majeure, la Suisse assurera l’exploitation du chemin de

fer du St-Gothard contre toute interruption. Toutefois la Suisse a le droit de prendre les

mesures nécessaires au maintien de la neutralité et à la défense du pays.

La neutralité

En ce qui concerne la neutralité de la Suisse, il faut retenir ce qui suit: le 20 novembre

1815, par le Traité de Paris, les grandes puissances européennes reconnaissent la neutralité

perpétuelle de la Suisse et garantissent l’inviolabilité de son territoire.

Selon la Constitution fédérale de 1848 la neutralité n’est pas un des buts de l’État mais

un instrument. Par les Conventions de La Haye, le droit de la neutralité est établi par écrit

pour la première fois. Lors de la Première Guerre mondiale, la neutralité et les frontières sont

respectées par les belligérants. En 1920, avec l’adhésion à la Société des Nations, la Suisse

pratique une neutralité diférenciée ; elle retourne à la neutralité intégrale en 1938. Le Conseil

fédéral réaffirme la neutralité de la Suisse au début de la Seconde Guerre mondiale, en 1939.

L’application de la neutralité, donc la politique de neutralité, est de la compétence du Conseil

fédéral et de l’Assemblée fédérale.

La situation en Europe dans les années 1930 se présente comme suit: avec la prise de

pouvoir de Mussolini en 1922 en Italie et de Hitler en Allemagne en 1933, la Suisse se trouve

entre deux dictatures. Elle est le gardien des Alpes, ainsi que des transversales de chemin de

fer les plus courtes entre l’Allemagne au nord et l’Italie au sud. Avec le blocus des Alliés

contre l’Allemagne après le déclenchement de la Seconde Guerre mondiale, en septembre

1939, commencent les mesures de blocus et contre-blocus des années de guerre.

43

La Suisse a des relations économiques aussi bien avec les pays de l’Axe qu’avec les

pays Alliés. Il faut bien le retenir, les négociations commerciales entre la Suisse neutre et les

belligérants ont un caractère particulier.

Le transit

La Convention de la Haye pour la guerre terrestre de 1907 contient des dispositions

concernant l’exportation et le transit du matériel de guerre. Mis à part cela, il n’existe pas de

règles de droit international se rapportant à la politique économique d’un pays neutre.

La Suisse maintient donc un trafic normal avec toutes les Puissances qui se fonde sur le

principe de la réciprocité.

Pour les matières premières, comme le charbon et l’acier, notre pays dépend

entièrement de l’Allemagne. L’industrie suisse exporte dans les pays de l’Axe aussi bien que

dans les pays Alliés. Une situation particulière se développe cependant dans le transit, surtout

entre l’Allemagne et l’Italie et vice-versa. L’Italie dépend économiquement de l’Allemagne

pour l’énergie, en particulier pour le charbon, mais aussi pour le fer et l’acier.

Jusqu’en 1940, ce trafic se déroule sur mer par la Manche, l’Atlantique et la

Méditerranée. Le 10 juin 1940, l’Italie entre en guerre aux côtés de l’Allemagne et, par

conséquent, les Anglais bloquent la voie maritime entre les deux pays de l’Axe. C’est à ce

moment que le trafic de marchandise entre l’Allemagne et l’Italie est dévié. Il se déroule

désormais par chemin de fer, à travers les Alpes. Tandis que le chemin de fer du Mont-Cenis

est rendu pendant des années impraticable à cause des destructions des partisans français, le

chemin de fer du Brenner est surtout utilisé pour des transports militaires, d’hommes et de

matériel.

Restent, au centre de l’Europe, les transversales alpines en Suisse, c’est-à-dire les

chemins de fer du Gothard et du Lötschberg-Simplon. Ce sont des voies de transit idéales,

intactes et non menacées par les avions des Alliés.

Ainsi, en été 1940, commence un important trafic de transit par chemin de fer entre

l’Allemagne et l’Italie. Les trains nord-sud transportent surtout du charbon, du fer et de

l’acier, tandis que ceux sud-nord contiennent des produits alimentaires de toutes sortes.

La situation de la Suisse

Les deux transversales alpines ferroviaires passaient au centre du Réduit que l’armée

suisse venait d’occuper dès l’automne 1940. De ce fait, les installations ferroviaires étaient

soigneusement gardées jour et nuit par la troupe et les ouvrages, comme les ponts et tunnels,

étaient préparés pour les faire sauter. Grâce aux lignes pricipales eléctifiées en Suisse, les

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trains circulaient comme en temps de paix. Le chemin de fer du Gothard était exploité par les

chemins de fer fédéraux (CFF) et la ligne du Lötschberg par la compagnie du BLS (Berner

Alpenbahn Bern-Lötschberg-Simplon), tandis que le Simplon était également du domaine des

CFF.

La particularité de la Suisse en politique commerciale fut de trouver des accords avec

les Puissances bélligérantes et d’organiser de façon autonome son économie de guerre. Au

blocus de Alliés suivait le contre-blocus de l’Axe.

Au début du conflit, la Suisse fournissait du matériel de guerre à la France et à

l’Angleterre. Selon le droit international (Conventions de La Haye) et le Règlement sur la

guerre terrestre, précicément la Convention sur les devoirs des neutres, la Suisse pouvait

exporter librement son matériel (de guerre) dans tous les pays. L’égalité de traitement

n’entrait pas en ligne de compte, puisque l’Allemagne n’avait rien commandé en Suisse. La

situation changea complètement en été 1940 avec l’encerclement de la Suisse par les

Puissances de l’Axe. Des livraisons pour les Alliés étaient devenues impossibles. Comme le

Conseil fédéral avait accordé la liberté d’exportation vers tous les pays, il était possible de

livrer en direction opposée, c’est-à-dire en Allemagne. Avec l’entrée en guerre de l’Italie, celle-

ci passait du non-belligérant, qui avait rendu de précieux services à la Suisse, à l’alliée de

l’Allemagne. La Suisse avait pu s’approvisionner, grâce au libre transit à travers l’Italie, de

produits et de matériel arrivés au port de Gênes. Cela changeait avec la participation de

l’Italie à la guerre.

Dans les tractations avec l’Allemagne, la Suisse possédait tout de même un avantage

non négligeable: le transit ferroviaire par le Gothard et le Lötschberg-Simplon. L’Allemagne

soutenait largement l’économie italienne, surtout avec du charbon, du fer et de l’acier. Chaque

jour, 1'800 wagons de marchandise allemands traversaient la Suisse en destination de l’Italie.

En septembre 1943, après la capitulation de l’Italie, l’Allemagne occupait tout le nord de

l’Italie. La Suisse était donc encerclée par une seule puissance. Dans cette nouvelle situation,

l’Allemagne dépendait encore plus des voies de transit à travers la Suisse. Par contre, la

Convention internationale de La Haye de 1907 sur la guerre sur terre imposait aux neutres

certaines obligations concernant le transit, précisément l’interdiction de transports militaires

dans une seule direction. Des biens civils peuvent acquérir, par des événements militaires, un

caractère militaire, par exemple des biens réquisitionnés. Pour de tels biens, la Suisse devait

restreindre le transit sud-nord. Pour la Suisse, le transit ferroviaire était un élément vital mais

45

rendu vulnérable par les contrôles de tout mouvement effectués par les Allemands. La Suisse

administrait le transit de façon autonome ; il n’était pas règlé par des contrats.

Dans cette situation particulière étaient applicables aussi bien la Convention de La

Haye de 1907 sur la guerre terrestre, que la Convention du Gothard de 1909 signée par la

Suisse, l’Allemagne et l’Italie. Par ces accords, la Suisse avait certains droits et devoirs qui

étaient de sa responsabilité. La Suisse s’engageait, par la Convention du Gothard, vis-à-vis de

l’Allemagne et de l’Italie à assurer l’exploitation de la ligne du Gothard sans interruption, sauf

en cas de force majeure. La Suisse avait cependant le droit de prendre les mesures nécessaires

au maintien de sa neutralité et à la défense du pays (Article 3).

La Convention de La Haye sur la guerre terrestre

- prescrit aux neutres l’exclusion de transports militaires en transit, dans un seul sens

- autorise l’exportation ou le transit de matériel de guerre à condition que tous les

belligérants soient traités de façon égale.

La Suisse a toujours exclu le transit du matériel de guerre. Cela valait également pour

le butin de guerre et cette exclusion de transit a été étendue aux transports sud-nord, après

que les Allemands eurent occupé l’Italie du nord. Les transports s’effectuaient, comme à

l’ordinaire, dans le sens nord-sud et étaient d’une importance capitale pour les puissances de

l’Axe durant la guerre. Seulement, vers la fin de la guerre, les transports subirent des

restrictions; les livraisons allemandes commençaient à avoir du retard, mais le transit de

charbon vers l’Italie demeurait inchangé. Pour la Suisse, les livraisons contractuelles avaient la

priorité sur le transit vers l’Italie ; elle appliquait le «do ut des».

La liberté de transit a toujours été respectée très exactement, puisque le libre passage

était d’une importance vitale pour un pays comme la Suisse, sans accès à la mer. L’attitude

indépendante de la Suisse provoqua les Puissances de l’Axe et les Alliés. Ce n’était pas

possible de les satisfaire, quel que soit le comportement de la Suisse. Notre pays appliqua le

principe du «do ut des» comme mentionné. Vers la fin de la guerre, nous utilisions le charbon

de transit pour nos propres moyens, parce que les livraisons pour la Suisse n’arrivaient plus

ou en quantités trop faibles. Une fois que le charbon d’Allemagne cessa d’arriver, le transit

par le Gothard s’arrêta automatiquement.

Conclusion

C’est ainsi, en ce qui concerne la politique commerciale, que la Suisse a dû chercher

une voie médiane entre les pays de l’Axe et les Alliés, mais aussi entre la Convention de La

46

Haye pour les neutres et la Convention du Gothard. La balance à trouver par une politique de

neutralité était difficile et exigeante. Dans l’ensemble, le chemin choisi par la Suisse a réussi

mais non sans difficultés permanentes.

47

COMBATANTS AND MILITARY OBJECTIVES VERSUS

CIVILIAN PERSONS AND OBJECTS

48

The Notions of Combatant, Armed Group, Civilians,

and Civilian Population in International Armed Conflicts

Kenneth WATKIN

Judge Advocate General of the Canadian Forces

Introduction

I would like to thank the conference organizers for the opportunity to speak at this

conference which is attended by such a distinguished group of participants. It is almost 20

years to the day that I was last in San Remo and I must say the reception has been as warm

and welcoming and the location as pleasant as I remembered it. The courses offered here at

the International Institute for Humanitarian Law are unique in that they provide an

opportunity to learn about humanitarian law in a truly “international” setting. The

experience of the course I took in 1987 has had a tremendous effect on me personally

regarding my understanding of the law governing armed conflict. We endeavour within our

office to get as many officers as we can here for your course. I must say given the location we

certainly don’t lack for volunteers.

The subject matter of this conference: “revisiting” the law of armed conflict governing

the conduct of hostilities is a timely one given the nature of the contemporary complex

security situation and the resulting challenges facing States and the rest of the world

community. The operational environment is a fast changing one and its impact on

international law is evident to government and military lawyers, academics and increasingly

to those practising international and domestic criminal law. The fact that the issue of the use

of force in International Humanitarian Law and Human Rights Law has such a prominent

place in the conference agenda is but one indication of that change. The tendency to deal with

the Law of Armed Conflict (otherwise known as International Humanitarian Law) and

Human Rights Law as almost exclusive disciplines does not reflect the reality of the modern

battlespace.

Similarly, the concepts of “combatant” and “civilian”, so fundamental to International

Humanitarian Law, have come under increasing scrutiny. It is of course that topic about

which I have been asked to speak although, as I will note, the question of “rights” and

“human rights” is a theme that is not far from the issue of “status” under the laws governing

49

armed conflict. Before embarking on my topic: “The notions of combatant, armed group, civilians

and civilian population in international armed conflicts” I would like to emphasize a couple of

points to counterbalance what will be at times during this presentation a somewhat critical

assessment of the state of the law governing combatant and civilian status.

Implementing and enforcing existing Law

First, there is a rich body of treaty and customary international law relating to the

issue of combatancy. There is universal acceptance of the Geneva Conventions and coming

from a nation which has ratified both the Additional Protocols to the Geneva Conventions we

are part of the 85% of the world’s States which have reached a consensus, if not always a

common understanding, on the conduct of hostilities provisions of those Protocols.1 Even in

respect of States which have not accepted all of the provisions of the Protocols it is the

wording in those “hard law” documents, particularly on the issues of targeting and collateral

damage, which form the basis of discussion in respect of both the “soft law” and an increasing

“public” and academic debate. Further, in respect of military forces common operating

procedures among alliance members ultimately result in many Protocol standards forming

part of operational doctrine regardless of how the conflict is categorized that applies to non-

signatory nations.

While there is continuing debate and discussion regarding the ICRC Customary

International Law Study methodology and sources (here I must indicate my general

appreciation for that work by indicating it has a prominent place on my book shelf and I refer

to it often in the course of my duties) the breadth of references in that study to the Protocols,

the Conventions and Hague law in military manuals is impressive in its own right as it

highlights the degree to which humanitarian law is impacting on military doctrine and

operations.

Secondly, there are two ways in which the issue of “combant/civilian” status can be

assessed: the “macro” strategic approach, or as we say in the military the “large hand-small

map” effect, and the micro detailed oriented method which seems to take up so much of a

lawyer’s time and effort. From a strategic perspective I am referring to the principle of

distinction, which, with the idea that the means and methods of warfare are not unlimited,

1 There are 194 Parties to the Geneva Conventions, 167 States Parties to Additional Protocol I, 163 to Additional Protocol II and 192 member States of the United Nations. (For the number of State Parties to the GCs, and AP I & II see http://www.cicr.org/ihl.nsf/CONVPRES?OpenView and for member States of the United Nations see http://www.un.org/Overview/unmember.html) (last visited 3 September 2007).

50

forms the basis of International Humanitarian Law. To put the importance of the principle of

distinction in context, I simply refer to the assessment of Professor Hersch Lauterpacht in the

immediate post-World War II period that “whatever may have been the original merits of that

distinction, the phenomenon of total war has reduced it, in most respects, to a hollow phrase.”2 The

casualties both military and civilian, estimated by John Keegan to be 20 and 50 million

respectively, stand as a tragic reminder of that fact.3 As a result much of the post World War

II effort by the international law community has been to reinforce that principle. Who can be

targeted (generally combatants) and those who cannot (generally civilians) is reflected not

only in the Additional Protocols but also in the rules and doctrine governing the conduct of

hostilities by many military forces. That effort has had significant success and plays an

essential role in the conduct of contemporary operations by many State armed forces.

It has reinforced the idea that there are no “quasi-combatants”. Factory workers and

other civilians who support the war effort, but who are not active participants cannot be

lawfully targeted. However, it is also clear that challenges remain, not the least of all is getting

State and non-State armed forces to implement the law as it presently exists. In this regard, I

can only highlight and whole heartedly endorse the effort being made by the ICRC to seek

compliance with existing norms of International Humanitarian Law.

A Challenging Task

However, beyond these general principles, resolving the question of

combatant/civilian status has always been a difficult and controversial task. It plagued the

earliest efforts to define belligerent status leading up to 1907 Hague Law. The famous

Martens Clause which has since been more widely applied to all cases not covered by the

codified provisions of International Humanitarian Law was not born out of a magnanimous

desire to extend humanitarian principles to all affected by warfare. Rather, it reflected the

very uncertain, and in many respects unsatisfactory, state of affairs regarding belligerency

upon which the juridical bedrock of contemporary notions of combatancy have been founded.

After powerful and less powerful States could not reach consensus over issues related to the

broader participation of citizens in armed conflict and the extension of the levée en masse to

occupied territories, the President of the Conference, Friedrich von Martens, noted that the

cases not dealt with would “remain under the protection and empire of the principles of

2 H. Lauterpacht, „The Problem of the Revision of the Law of War“, British Year Book of International Law, Vol.29, 1952, p.360, p.364. 3 John Keegan, A History of Warfare,Vintage Books, 1993,p. 50.

51

international law, as they result from the usages established between civilized nations, from the laws of

humanity, and the requirements of public conscience.”4

True to the theme of this conference a “revisiting” of the Law of Armed Conflict in

2007 should involve a clear headed analysis of the degree to which combatant and civilian

status has clarified by treaty law over the past century. At a cursory level of analysis as I look

at the law, the questions of who is a combatant and who is a civilian are relatively

straightforward. To qualify for combatant status one must do the following:

1. Be commanded by a person responsible for his or her subordinates;

2. Have a fixed distinctive sign recognizable at a distance;

3. Carry arms openly;

4. Conduct operations in accordance with the laws and customs of war.

These are the minimum four criteria of the 1907 Hague Land Warfare Regulations.

Further there is the requirement to: a) belong to a Party to the conflict; and b) an

organized group found in Geneva Convention III.

Then there is the provision, sometimes but incorrectly seen as an historical anomaly,

relating to the levée en masse.

Of course Additional Protocol I, Article 43 clarifies that medical personnel and

chaplains are not combatants and whenever a paramilitary or armed law enforcement agency

is incorporated into the armed forces notification must be given to other Parties to the conflict.

The Protocol then goes beyond that and in certain narrowly prescribed circumstances,

understood by Canada to include in occupied territory and those referred to in Art. 1, para. 4

(specific situations in the exercise of the right of self-determination), limits the visible indicia

of distinction to carrying arms openly during each military engagement and during such time

the combatant is visible to the adversary while engaged in a military deployment.

By definition in Article 50 of Additional Protocol I everyone else is a “civilian”. This all

of course occurs in the context of an international armed conflict which, depending upon the

international law expert consulted or case read, really just applies to armed conflict between

States, although I must admit the wide acceptance of Additional Protocol I, which

incorporates limited conflicts relating to self determination within the scope of Common

4 See Ministry of Foreign Affairs, The International Peace Conference, Martinus Nijhoff, 1907, p. 548. See also Antonio Cassese, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, European Journal of International Law , Vol.11, 2000, p.187 (for an outline of the struggle to expand an interpretation of the Martens Clause to all of humanitarian law.).

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Article 2 of the Geneva Conventions, would appear to indicate “international” armed conflict

might be broader than State on State conflict.5

On one level it seems so simple. Yet that is not the reality. The world in which

military forces operate, legal experts provide advice and courts will increasingly be asked to

rule is far more nuanced and complex than suggested by a simple reading of the treaty law.

Here lies the problem. As important as it is to reinforce the application of the existing treaties

they represent at their best the written consensus regarding laws that are 100 and 30 years old.

Those laws are not by any means clear or comprehensive and they are being increasingly

challenged both in respect of their scope and relevance to contemporary armed conflict. The

treaty law also does not represent the full breadth and scope of customary international law.

The question might be asked whether the existing treaty law represents a success on

the part of the international community (the view of the optimist) or reflects its failure in

dealing with combatant and civilian status (the perspective of the pessimist). From either

perspective there are significant issues which remain to be resolved some 100 years after they

were first internationally addressed by those who acknowledged the need to codify or

otherwise reach a common understanding of the laws governing warfare.

Unresolved Issues

Even a brief outline of the unresolved or unclear issues related to combatant status

highlights the challenges. I have already indicated the lack of initial consensus reflected in the

Martens Clause. The limitations on the treaty provisions are also graphically reflected in the

post World War II attempt to deal with organized resistance movements in occupied territory

in Geneva Convention III. Notwithstanding the significant reliance placed on guerrilla

operations by Allied Powers during the Second World War the requirement that organized

resistance movements had to meet the traditional combatant requirements, including wearing

a fixed distinctive sign and carrying arms openly, has prompted widespread recognition that

the provisions are unrealistic.6 In the words of Colonel Draper “[i]f memory be short, so is

5 See L. C. Green, The Contemporary Law Of Armed Conflict, 2d ed., 2000, pp 51-56. ([T]o some extent certain non-international conflicts have come under the aegis of international law since 1977 with the adoption of Article 1(4) of Protocol I and Protocol II additional to the 1949 Geneva Conventions . . . .). 6 For example see Howard Levie, “Prisoners of War in International Armed Conflict”, American Journal of International Law, Vol.75, N.3, July 1991, pp. 699-700 (“this attempted enlargement of the provisions of prior conventions accomplished little or nothing.”).

53

gratitude.”7 The underlying question of the status of personnel who do not necessarily

operate at all times in uniforms or carry arms openly is an increasingly important one given

the contemporary widespread use of special forces and para-military armed groups in

operations. Even thirty years ago there was a grudging and somewhat back handed

recognition in Additional Protocol I that operations would be conducted by combatants out of

uniform.8 Such forces have quickly become the armed forces of choice in dealing with

contemporary security challenges including international armed conflict.

In respect of occupied territory, there remains the issue of the status of security forces

engaged in battling insurgent forces which do not meet the restricted criteria of combatancy.

While it has been noted that AP I generally deals with police and paramilitary forces in

respect of combatancy, the Geneva Conventions and their Protocols do not directly deal with

the issue of indigenous police forces and the interface of those security forces with any

ongoing armed conflict. The ICRC Commentary does indicate that police officers of the

occupied territory cannot be required to participate in measures aimed at opposing legitimate

belligerent acts, although they can trace and punish “hostile acts committed in circumstances

other than those laid down in Article 4 of the Third Geneva Convention”.9 This continuing link to

the “legitimacy” of the opponent insurgent force means ordinary police forces could be

engaged against organized armed groups illegally involved in the armed conflict. What then

is their relative “status”?

The issue of the status of organized resistance movements and the involvement of

police forces who are not “combatants” highlight that even in the narrow and very traditional

view of what constitutes an international armed conflict there are significant parallels with the

challenges of determining status in non-international armed conflict. Indeed, this connection

is reflected in the justification for the organized resistance movement provision, presented

during the negotiations of Geneva Convention III, that recognizing that such groups and

members of other militia and other volunteer corps must belong to a Party to the conflict as a

condition of legitimacy “refutes the contention of certain authors who have commented on the

Convention that this provision amounts to a ‘ius insurrectionis' for the inhabitants of an occupied

territory”.10 The contemporary connection between occupation and other insurgencies can be

7 Colonel G.I.A.D. Draper, “The Legal Classification of Belligerent Individuals”, in Michael A. Meyer and Hilaire McCoubrey (eds) , Reflections on Law and Armed Conflict, Kluwer International Law, 1998, p.101. 8 Art. 44(7). 9 See ICRC Commentary, Geneva Convention IV, Art. 54, para. 2 at www.icrc.org. 10 See ICRC Commentary, GC III, Art. 4.

54

found in the new U.S. Army, Marine Corps Counterinsurgency Field Manual where it is stated:

“an insurgency is an organized, protracted politico-military struggle designed to weaken the control

and legitimacy of an established government, occupying power, or other political authority while

increasing insurgent control.” 11 The 2003 Iraq conflict has highlighted some limitations of the

existing treaty law in even a traditional post conflict situation. The issue is even more

complex if one considers that occupation has rarely fit neatly into the traditional scope of the

“black letter” law. As a result questions have arisen as to whether there is a de jure or de facto

(or policy) link where the laws of occupation would extend to territory simply under the

effective control of a State, group of States or international organization. What then would be

the status of the State armed forces and any opposing insurgent groups?12

Similarly most United Nations operations or coalition based State involvement in

enforcement actions (the “three block” wars and “small” wars of the 21st Century) don’t fit

nicely into the classic ideas of international or non-international armed conflict. However,

from a normative perspective International Humanitarian Law is often applied as a matter of

“spirit and principle”.13 What then of the status of the participants?

There is also the question of what actually constitutes an “international armed

conflict” within which the combatant/civilian interface is applied. Is it truly limited to State

on State conflict? As is set out in the Targeted Killing Decision it does not appear that the

Israeli High Court of Justice has seen such conflict limited to inter-State conflict.14 Coming

from a country where the “Caroline” incident took place it is evident that the right of the

exercise of self-defence under international law can occur in the context of a State fighting

non-State actors.15 Faced with non-State actors who project terrorist violence across

international borders and even continents it is also not clear that the emerging preference for

11 2 para. 1-2 (2007). 12 See Eyal Benvenisti, The International Law of Occupation, Princeton, 1993, 2004, p.4. See also Michael Kelly, Restoring and Maintaining Order in Complex Peace Operations, 1999, pp.111-143 and Steven R. Ratner, „Foreign Occupation and International Territorial Administration: The Challenges of Convergence“, European Journal of International Law, Vol. 16, 2005, pp. 695-698. 13 For example, see Canadian Forces doctrine Manual: The Law of Armed Conflict at the Operational and Tactical Level, B-GJ-005-104/FP-021, August 13, 2001, at 17-1, para. 1702 available at http://www.forces.gc.ca/jag/training/publications/loac_man_e.asp; and the United Nations Secretary-General’s Bulletin Observance by United Nations Forces of International Humanitarian Law 38 I.L.M., 1999, p.1656. 14 The Public Committee Against Torture in Israel et. al. v. The Government of Israel et. al, See HCJ 769/02, 13 Dec 2006, available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. 15 See Christopher Greenwood, “International Law and the ‘War Against Terrorism’” International Affairs, Vol.78 2002, pp.301, 308; see also Abraham D. Sofaer, “On the Necessity of Pre-emption”,European Journal of Inernational Law, Vol.14, 2003, p.209 (for a general discussion of the Caroline dispute).

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the term “conflicts not of an international character” fits the bill particularly when one notes

Common Art. 3 of the Conventions limit the treaty application to conflicts “occurring in the

territory of one of the High Contracting Parties”.

In this respect a number of nations, including Canada, conduct operations on the high

seas in respect of the ongoing campaign against terrorism (or the “CAT” as we refer to what

other nations might call the Global War on Terrorism-GWOT). While I might borrow from

the American author Mark Twain and indicate that I believe predictions of the death of State

vs. State international armed conflict are “greatly exaggerated” it is also clear that the

predominate form of conflict is non-international in character.16 Even here it is not

uncommon in military circles to see State armed forces referred to as “combatants” while the

opposing forces are often termed as insurgents, enemy forces or armed groups. This de facto

use of the term “combatant” stands in contrast to the term “fighters” suggested in the Sanremo

Manual on the Law of Non-International Armed Conflict17 where it is used to seek to avoid any

confusion with the meaning of combatant in the context of International Humanitarian Law.

Unlawful Combatants

Perhaps one of the glaring omissions in the treaty law is the lack of direct

acknowledgement of the customary international law based concept of “unlawful combatant”.

Even a cursory view of the academic literature and case law highlights that “unlawful

combatants” have long been part of international armed conflict and the law that governs it.18

In a seminal article on the point in 1951, Richard Baxter highlighted the challenges of dealing

with “persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by

reason of the fact that they have engaged in hostile conduct without meeting the qualifications

established by Article 4 of the Geneva Prisoners of War Convention of 1949”.19 Equated to spies and

mercenaries their existence at law is also reflected in Canadian doctrine as well as that of other

16 See Human Security Report 2005: War and Peace in the 21st Century, Oxford University Press, 2005, p.23 available at http://www.humansecurityreport.info/HSR2005/Part1.pdf (where it is indicated that 95% of conflicts occur within States.). 17 See” The Manual on the Law of Non-International Armed Conflict”, Israel YearBook on Human Rights, vol.36, 2006, para. 1.1.2, p.4 18 Lester Nurick and Roger W. Barrett, “Legality of Guerrilla Forces Under the Laws of War”, American Journal of International Law, 1946, p.40. See also Kenneth Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy, Occasional Paper Series, 2005. pp.45-47 19 Richard R. Baxter, “So-called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs”, British Yearbook of International Law, 1951, pp. 323, 328.

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countries20 and even contemporary court decisions.21 Under Canadian doctrine “unlawful

combatants” include civilians taking a direct part in hostilities, mercenaries and spies.22

Consistent with the status of spies, civilians who take a direct part in hostilities do not, if their

participation is not perfidious, commit a breach of humanitarian law, but rather the domestic

law of the State which captures them. They are, however, acts for which international law

provides no protection.

It is at this point that a rigid bifurcated system of “combatant” and “civilian” status

presents significant practical challenges in respect to the application of International

Humanitarian Law. In a narrow reading of Additional Protocol I anyone who is not a

legitimate combatant is a “civilian”. This can occur even if the member is part of an organized

armed group, but that group does not belong to a Party to the conflict or does not otherwise

comply with the constitutive conditions of combatancy. In theory at least, they might even be

wearing a uniform. The idea that civilians retain their status but not their protection for such

time as they take a direct part in hostilities is also fraught with potential dangers. Being a

“civilian” also carries with it the notion of “legitimacy”. The recognized involvement of

“civilians” in hostilities might put all civilians at risk. Beyond the realm of the “black letter”

law it is conceptually difficult to see why a person can remain a “civilian” and still participate

directly in “combat”.

The fact that military forces can be lawfully directed to target certain civilians (those

who take a direct or active part in hostilities) has the potential to significantly undermine the

principle of distinction itself. One only has to put themselves in the shoes of a military

commander who seeks to reinforce the principle of distinction by directing his forces to target

combatants (lawful or unlawful) and never target civilians. It would be ironic for a lawyer to

then state no there is no such thing as an “unlawful combatant” at law and under a strict

reading of the law certain “civilians” can be targeted.

It might even be argued that treaty law appears to allow for three classes of people:

combatants, civilians who take a direct part in hostilities and other civilians. However, it is

more complicated than that and it can be suggested that in addition to the three categories

noted above a careful reading of the Protocol also recognizes otherwise lawful combatants

who fall within Article 44(4) [they are not referred to as “civilians”]. Of course there remains

20 See also United Kingdom Ministry of Defense, The Manual of The Law of Armed Conflict, Oxford , 2004, para. 11.4, p. 279 21 See Hamdi v. Donald H. Rumsfeld, 124 S. Ct. 2004, pp.2633-2640 (where reference is made to “enemy combatants,” “lawful combatants,” and “unlawful combatants.”). 22 See The Law of Armed Conflict at the Operational and Tactical Levels, 2001, Chap 3, Sect 4.

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that “combatant like” forces, who may not qualify for legitimate combatant status no matter

how organized or violent they are, but in reality are not true “civilians”. This is an area of the

law which could benefit from further clarity.

Notwithstanding its established basis in customary international law the term

“unlawful combatants” was unfortunately not referred to in the ICRC Customary International

Law Study. Instead, in the Study’s very first Rule “combatant” is used in a generic sense

described as “persons who do not enjoy the protection against attack accorded to civilians”.23 This

would of course include “civilians” who take a direct part in hostilities under the “meaning”

of combatant. It is not clear why this approach was taken. It would seem to be an attempt to

avoid the controversial issue of “legitimacy” which has so plagued the discussion of

combatant status. While lawful combatants would be entitled to prisoner of war status and

“generic” combatants would not necessarily be so privileged, it is not clear that avoiding the

issue in this manner will ultimately clarify the law.

Civilians

When do civilians cross the line and lose the protection of their status? When do they

become lawful targets? As many of you are aware, the Asser Institute and the ICRC are co-

ordinating a conference of experts to deal with this important issue. There will undoubtedly

be more said on this subject during this conference. Suffice it to say that civilians have long

been present on, or near, the battlefield in a variety of roles including providing logistic

support to military forces. This is reflected in both the Hague Law and the Geneva

Conventions where prisoner of war status is provided to certain categories of civilians.

Depending on the function they perform civilians may be lawful targets. If not, their presence

puts them at increasing risk.

There is also an increasing presence of private security contractors. It appears evident

that the degree to which such contractors are in danger of crossing the line into the realm of

“unlawful combatancy” will be in many ways contextually driven. For example, are they

participants in an international armed conflict? What is the nature of their participation? Is

the provision of private security to government leaders and business interests during

occupation more akin to the performance of a policing type function? There is also the issue

that being an “unlawful combatant” is not contrary to international law. Unfortunately the

23 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 3, Rule I Cambridge University Press, 2005

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debate about “private contractors” often gets mired in questions of how they are controlled

and held accountable which can in turn cloud the question of their status at law.

Regarding the protection of civilians it must be remembered that a primary

consideration of humanitarian law is their protection. However, they remain at risk due to

their proximity to valid military targets. Civilians are subject to the collateral effects of a valid

attack through the principle of “double effect” even though they are not performing a

combatant function. This is an area of the law which requires further discussion and

development. As is reflected in the 2006 Israeli Targeted Killing case, it appears that the

courts may be asked to provide solutions to the very questions that have to date escaped

consensus by the international legal community. Simply reinforcing the status quo will not

necessarily assist those courts in reaching a conclusion that reflects the requirements of the

international community in the 21st Century.

Conclusion

The need to reinforce the principle of distinction so clearly set out in Additional

Protocol I is evident. However, that goal will remain somewhat aspirational without a

consensus on what that principle means; who is a valid target; and the protection that must be

provided to those who are hors de combat regardless of their “status”. A particular challenge

will be to deal with the “legitimacy” aspect of combatancy. Rather than seeking to avoid

debate on this issue it needs to be faced head on. The lawful or unlawful aspect of

participation in warfare is unlikely to disappear any time soon. What is unfortunate is when

the standard to treatment applied to captured personnel is linked to the notion of legitimacy.

Here treaty law provides excellent guidance on what standards must be applied regardless as

to the status of the detained person, as the Fourth Geneva Convention sets up a regime for the

treatment of “unlawful combatants” that parallels that which applies to POWs. Similarly,

Article 75, which has largely been recognized to reflect customary international law,

reinforces the application of human rights standards in the treatment of persons who are in

the power of a Party to the conflict including those who are arrested, detained or interned.

As I have noted, the application of existing humanitarian law is an important step in

seeking to limit the tragedy of war. There are important initiatives such as the Direct

Participation meetings, the Air and Missile Warfare Manual and the San Remo Manual on Non-

International Armed Conflict which will advance our mutual understanding of the law.

However, as Yoram Dinstein has noted in his book The Conduct of Hostilities, there is a

lethargy that has developed in the 21st Century regarding what has been historically semi-

traditional quarter century reviews of the Geneva Conventions. There is much to clarify in

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the law. The role of international law, and in particular humanitarian law, in an increasingly

interconnected and rapidly changing world, is being challenged in respect of both its

relevance and effectiveness. It is difficult to see how lethargy can remain an option.

The Notions of Civilians and Fighters in Non-International Armed Conflicts

Jann K. KLEFFNER,

Assistant Professor of International Law, University of Amsterdam

This paper discusses the distinction between different categories of persons in non-

international armed conflicts. This is one of the areas in which the distinction between

international and non-international armed conflicts remains particularly acute.

In a first step, I will briefly explain why (1), before turning to the treaty provisions

applicable in non-international armed conflicts relevant for our analysis (2). In a subsequent

step, I will consider the findings of the ICRC’s Customary Law Study on the matter (3). Lastly, I

will discuss the three broad approaches that can be deduced from the aforementioned sources

(4).

1. The reason for the difference between international armed conflicts and non-international armed

conflicts: absence of combatant status in non-international armed conflict

The main reason for the persistent difference between international armed conflict and

non-international armed conflict when it comes to distinguishing between those persons who

are legitimate targets and those who are entitiled to protection is the absence of combatant

status in non-international armed conflict. Combatant status and its consequences – chiefly:

combatant privilege and entitlement to prisoners of war (POW) treatment upon capture – do

not apply in non-international armed conflict. In non-international armed conflict, acts lawful

under the laws of armed conflict remain in principle punishable under domestic law. All that

the laws of armed conflict do is to encourage (not oblige) ‘the authorities in power’ to grant

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the widest possible amnesty to persons who have participated in the armed conflict,24

provided such persons have not committed war crimes or other international crimes, which

States are obliged to investigate and prosecute. Furthermore, those who have directly

participated in hostilities in a non-international armed conflict and have been interned or

detained are not entitled to treatment as prisoners of war.

In short, combatant privilege and prisoner of war status are, therefore, of no relevance

to non-international armed conflicts. This is only different for situations in which members of

non-State armed forces are granted that status in accordance with a special agreement

envisaged under Common Article 3 or by virtue of a unilateral act of one or more Parties to

the conflict.

Another consequence, which the absence of combatant status entails – and this is most

pertinent for our subsequent discussion - is that in non-international armed conflicts the

principle of distinction cannot be conceptualised in the same way as in international armed

conflicts.25 This is so because the principle of distinction in international armed conflict has the

notion of ‘combatant’ as reference point: civilians are all those who are not combatants. In

contrast, the law of non-international armed conflicts is deprived of that reference point.

That the principle of distinction – in its generic meaning that Parties to an armed

conflict must distinguish between those who are legitimate objects of attack and those who

enjoy protection – is equally applicable in non-international armed conflicts is beyond

dispute.26 But how, then, is that distinction made in the absence of combatant-status?

2. The relevant treaty provisions

The relevant treaty provisions applicable in non-international armed conflicts do not

provide a clear answer to the aforementioned question.

Common Article 3 does not employ the term ‘combatant’ or ‘civilian’, let alone define

it. Instead, the wording of the provision suggests a distinction between, on the one hand,

persons taking no active part in the hostilities, and, on the other hand, those who do take an

24 Cf., Art. 6(5) AP II. 25 See for example, ICTY Trial Chamber, Prosecutor v. Mrksic et al, Judgment of 27 September 2007, par. 457. 26 See J.M. Henckaerts and L. Doswald-Beck, eds., Customary International Humanitarian Law, Vol. I: Rules Cambridge, Cambridge University Press, 2005, Rule 1, with Summary of the abundant evidence in relation to non-international armed conflicts at pp. 5-8.

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active part in the hostilities. At the same time, however, the provision refers to ‘members of

armed forces who have laid down their arms’ as one sub-category of ‘persons taking no active part in

the hostilities’. In so doing, Common Article 3 confirms the existence of, and membership in,

‘armed forces’ in non-international armed conflicts, while not distinguishing between State

armed forces and non-State armed forces. Furthermore, the provision is addressed to ‘each

Party to the conflict’, thereby recognizing the existence of collective entities that face each other,

at least one of which is a non-State actor. Indeed, together with the intensity of the armed

violence, it is the existence of these collective entities – organized armed groups – which is

central in distinguishing genuine armed conflicts from mere internal disturbances, sporadic

acts of violence and the like, which are beyond the reach of the laws of armed conflict.

Common Article 3 is, however, inconclusive as to where precisely the dividing line lies for

purposes of the principle of distinction. Is it solely between those who actively participate in

the hostilities and those who do not, or does the notion of ‘membership in armed forces’ alter

that equation?

In contrast to Common Article 3, Additional Protocol II and subsequent treaties that

apply in non-international armed conflicts employ the terms ‘civilians’ and ‘civilian

population’ on various occasions.27 Yet, they do not define the terms. The drafting history of

Additional Protocol II reveals that the attempt failed to define ‘civilians’ negatively in ways

similar to the First Additional Protocol as anyone who is not a member of the armed forces or

of an organized armed group.28 It has nevertheless been suggested that this deletion should

not be understood to have done away with the basic distinction between members of

organized armed groups, on the one hand, and civilians (being those who are not members of

organized armed groups), on the other hand.29 In fact, it may be argued that the provision in

Additional Protocol II, which stipulates that civilians lose their protection ‘unless and for such

time as they take a direct part in hostilities’30, confirms such an approach.31 One might add that

27 Cf., Art. 5(1)(b) and (e) and Part IV (Arts. 13-18) AP II; Arts. 3(7)-(11) Amended Protocol II to the CCW; Art. 2 Protocol III to the CCW; Arts. 8(2)(e)(i), (iii) and (viii) ICC Statute. 28 M. Bothe, et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, The Hague, Martinus Nijhoff Publishers, 1982, p. 671. 29 M. Bothe, Direct Participation in Hostilities in Non-International Armed Conflict, Paper submitted to the Second Informal Expert Meeting organized by the International Committee of the Red Cross and the TMC Asser Institute, The Hague, The Netherlands, 25-26 October 2004, p. 9 (on file with author). 30 Art. 13(3) of AP II. 31 Bothe, supra n. 29. See also Y. Sandoz, et al., (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 ,Dordrecht, Nijhoff ,1987. p. 1453 at para. 4789 where Sylvie Junod equally juxtaposes members of armed forces or armed groups and civilians by stating that

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Additional Protocol II is at least as explicit as Common Article 3 as regards the existence of,

and membership in, ‘armed forces’ and ‘organized armed groups’. Be that as it may, a

conceptualisation of the principle of distinction under the Protocol in the aforementioned way

still leaves unaffected the ambiguity surrounding the principle of distinction with respect to

all those non-international armed conflicts, which do not reach the relatively high threshold of

Additional Protocol II.32

3. The ICRC Customary Law Study

If one then turns to the ICRC Customary Law Study one can only conclude that it does

not remedy the ambiguity left by the conventional law of non-international armed conflicts.

Rule 1 of the Study sets forth the principle of distinction for all armed conflicts in

language reminiscent of the law of international armed conflicts in as much as it refers to

‘civilians’ and ‘combatants’.33 The Study clarifies, however, that ‘[t]he term “combatant” in

this rule is used in its generic meaning, indicating persons who do not enjoy the protection against

attack accorded to civilians, but does not imply a right to combatant status or prisoner-of-war

status’.34 Such wording thus shifts the attention away from the question who is the object of

legitimate attack, to the question who is a ‘civilian’ and thus enjoys protection, and to the

ensuing question under what conditions civilians lose their protection on account of their

direct participation in hostilities (Rule 6). In fact, the approach under treaty law for

international armed conflicts (‘civilians are those who are not combatants’, in combination

with a clear definition of ‘combatants’) is turned on its head: combatants are all those who do

not enjoy protection accorded to civilians. The principle of distinction as expressed in the

ICRC Customary Law Study thereby centres around the question who is a ‘civilian’.

For international armed conflicts, in turn, that question can be answered by reference

to Article 50(1) of the First Additional Protocol and its corresponding rule of customary

‘[t]hose who belong to armed forces or armed groups may be attacked at any time. If a civilian participates directly in hostilities, it is clear that he will not enjoy any protection against attacks for as long as his participation lasts.’ 32 Recall that Art. 1(1) of AP II requires that the conflict take place between the armed forces of a State ‘and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [the Second Additional Protocol]’. 33 Cf., supra n. 26. 34 Id., emphasis added.

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international law.35 Yet, under the law of non-international armed conflict the answer is far

from clear. The ICRC Customary Law Study also acknowledges this. It asserts with regard to

non-international armed conflicts that members of State armed forces are not considered

civilians.36 So, that much seems to be clear. Yet, the Study finds that practice is ambiguous ‘as

to whether members of armed opposition groups are civilians subject to Rule 6 on loss of protection

from attack in case of direct participation or whether members of such groups are liable to attack as

such, independently of the operation of Rule 6’.37 It is on this question – the status of members of

non-State organized armed groups – that I will concentrate in the following.

Three alternative approaches present themselves.

4.1 Membership Approach

The first approach is to draw an analogy to the law of international armed conflicts,

and to make a distinction between two groups of persons: members of armed forces

(including those of the State as well as non-State organized armed forces), on the one hand,

and all others, on the other hand. One could refer to the former as ‘fighters’ (a term borrowed

from the San Remo Manual on the Law of Non-International Armed Conflict), in order to avoid any

confusion about their lacking the entitlement to combatant-privilege and prisoner of war

status.38 Such ‘fighters’ would be legitimate targets, regardless of whether or not they are

directly/actively39 participating in hostilities at the time of being made the object of attack,

much as combatants in international armed conflicts. All those who are not ‘fighters’ would

be considered ‘civilians’ entitled to protection. Civilians, in turn, would lose their protection

(but not their status) as civilians when and for such time as they take a direct/active part in

hostilities.

4.2 Specific Acts Approach

35 Cf. Henckaerts and Doswald-Beck, (eds.), supra n. 26, at p. 18. 36 Id., at p. 19. 37 Id. 38 See The Manual on the Law of Non-International Armed Conflict, San Remo, International Institute of Humanitarian Law, 2006, reprinted in Israel Yearbook on Human Rights, Vol.36, 2006, (Special Supplement, 71 pp.) p. 4 at s. 1.1.2. 39 The two notions of taking an ‘active’ part in the hostilities in Common Art. 3 of the Geneva Conventions and of taking a ‘direct’ part in hostilities in Art. 13(3) of the second Additional Protocol are understood to be synonymous, see e.g. ICTR Trial Chamber, Prosecutor v. Jean-Paul Akayesu, judgment of 2 September 1998, p. 629.

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A second approach is to distinguish solely between those who do and those who do

not actively/directly participate in hostilities. Those who do, in turn, would include members

of organized armed groups, as well as other individuals. The most significant difference to the

‘membership approach’ consists of the fact that all those who directly/actively participate in

hostilities are subjected to the same regime: they may not be made the object of attack ‘unless

and for such time’ as they take a direct/active part in hostilities. This second approach would

make the legality of an attack upon members of organized armed groups dependent on the

specific act of actually directly/actively participating in hostilities. Prior to and after such

direct participation, they would be entitled to protection, with the exception of the

deployment to and return from such participation, which is understood to fall within the

notion of ‘direct participation in hostilities’.40 Such a construction would thus create a stark

contrast to international armed conflicts, where a distinction is drawn between civilians (who

can only be targeted if and for such time as they take a direct part in hostilities) and

combatants (i.e., members of the armed forces of a Party to a conflict, who are targetable at all

times). This is the so-called ‘specific acts approach’41.

4.3 Direct participation on a Gliding Scale

Thirdly, as an intermediate position between the membership and specific act

approaches one could rely solely on the direct participation of persons, subject to the

important qualification that the notion of ‘active/direct participation in hostilities’ is

interpreted differently for members of organized armed groups than for those who are not

members. In relation to the first category of persons, membership would be construed as

‘permanent active participation’ so that they remain targetable as long as their membership in

the armed group lasts. In contrast, those who are not members of such groups would only

lose their protection while engaging in the specific act of actually directly/actively

participating in hostilities.

40 It has also been argued that other preparatory acts may be covered, cf., Sandoz, et al., (eds.), supra n. 31, p. 1453 at para. 4788. For a recount of the discussion of the temporal scope of the loss of protection due to direct participation in hostilities during the series of Expert Meetings on the Notion of Direct Participation in Hostilities, co-organized by the International Committee of the Red Cross and the T.M.C. Asser Institute, see Summary reports of these meetings available on the ICRC website at: <www.icrc.org/web/eng/siteeng0.nsf/html/participation-hostilities-ihl-311205> at pp. 59-62. 41 Ibid., Summary Report 2005, pp. 60-62.

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4.4 Discussion

Let us now consider the merits and disadvantages of the three different approaches.

From a conceptual point of view, the strength of the membership approach consists of

its accommodating most clearly the notion that an armed conflict involves at least two Parties

with their own armed forces, which are equal before the laws of armed conflict. Members of

organized armed groups do not act as atomised individuals, but as part of a structured

collective whose very purpose is to use armed force and inflict death and injury and damage

to objects of such an intensity so as to reach the threshold of a non-international armed

conflict. To be part of the fighting force of a Party to an armed conflict is fundamentally

different from persons, who participate in hostilities independently from the Parties.

Furthermore, the membership approach upholds the fundamental precept that the

Parties to an armed conflict are equal before the laws of armed conflict as it makes members

of both State armed forces and non-State organized armed groups permanently targetable. In

contrast, the specific acts approach would result in more restraints for governmental armed

forces (who, as noted earlier, are not considered civilians42) when targeting members of armed

groups than in the reverse situation in which members of armed groups target governmental

armed forces. In fact, it would make it virtually impossible for State armed forces to employ

force offensively rather than defensively.43

The ‘direct participation on a gliding scale approach’ does not share this problem of a legal

asymmetry between the Parties to an armed conflict as far as the targeting of persons is

concerned. To construe membership in an organized armed group as permanent direct

participation causes such members to be a legitimate object of attack for the entire duration of

their membership and thus produces the same results as the membership approach. The

‘direct participation on a gliding scale approach’ is however open to the objection that it conflates

two conceptually distinct categories of persons – members of armed groups and others who

directly participate in hostilities without being members of such groups – under one and the

same heading of ‘direct participation’. Yet, that latter notion is intrinsically linked to ‘civilians’

at least in the wording of the Second Additional Protocol44 and other relevant sources.45

42 Cf., supra n. 36. 43 For the limited exception in relation to preparatory acts or the return from direct participation cf., supra n. 40. 44 Art. 13(3) AP II. 45 See e.g. Art. 8(2)(e)(i) ICC Statute.

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Notwithstanding that, according to the ‘direct participation on a gliding scale approach’, members

of armed forces are deprived of their immunity from being made the object of attack for the

entire duration of their membership, it is deeply counter-intuitive to regard them as ‘civilians’.

More importantly still, to do so runs the risk of blurring the lines for the purpose of the

principle of distinction and thereby negatively impacting on the protection of those who

deserve it.

While the foregoing considerations suggest that the membership approach has

considerable merits in comparison to the other two approaches, one cannot fail to also note a

number of pitfalls and necessary caveats, which in my view, condition its viability. A first

such caveat relates to the type of members of organized armed groups, who are to be

considered legitimate objects of attack. The term ‘membership approach’ conveys the

impression that any such member would lose the protection against being attacked for the

entire duration of his/her membership, regardless of the function that that person fulfils.

However, such an approach is unduly broad and would create an imbalance between State

armed forces and non-State armed forces opposite to the imbalance created by the specific acts

approach. This is so because it would impose less restraints in the targeting of members of

organized armed groups than of members of State armed forces. Much as State armed forces,

organized armed groups may include members devoted to functions other than fighting.

Indeed, certain categories of members of organized armed groups, most notably medical and

religious personnel, are expressly entitled to protection, provided they abstain from

committing hostile acts outside their humanitarian function.46 It is, therefore, submitted that

only ‘fighters’ should be liable to attack for the entire duration of their membership, ‘fighters’

being those members of organised armed groups who assume fighting functions on an

ongoing basis, including those who are part of the command and control structure.47

Secondly, it is submitted that, in analogy to the law of international armed conflict, the

category of persons mentioned in Article 4A(4) of the Third Geneva Convention should also

46 Cf., Art. 9 AP II. Although Art. 9 AP II does not include an express provision on the loss of protection of medical and religious personnel, this flows from an analogous application of Art. 11(2) 1st sentence AP II. In this vein, see also Rule 25 of the Customary Law Study, Henckaerts and Doswald-Beck, (eds.), supra n. 26, at pp. 79, 80-81, 84-85. 47 In this vein, see also N. Melzer, Draft Interpretative Guidance on the Notion of “Direct Participation in Hostilities”, prepared for the Fourth Expert Meeting on the Notion of “Direct Participation in Hostilities under IHL” Geneva, 27 / 28 November 2006, Co-organized by the International Committee of the Red Cross and the TMC Asser Institute, 2006, p. 15 (on file with author).

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be considered civilians in non-international armed conflicts.48 In other words, persons who

accompany the armed forces without actually being members thereof should be immune from

being made the object of attack, unless and for such time as they directly participate in

hostilities.49

A third caveat, which builds on the two preceding observations, concerns the

availability of reliable intelligence on which to base the reasonable and honest determination

that a person is a ‘fighter’. If one considers today’s non-international armed conflicts, it is

readily apparent that organized armed groups differ considerably. Some (probably the

minority) are relatively stable, possess a clear organizational structure, are identifiable

because they wear uniforms or other distinctive signs (at least occasionally), and occupy part

of the territory of the State against which they fight.50 At the opposite end of the spectrum are

armed groups, which meet the threshold of being considered ‘organized’ within the meaning

of the laws of armed conflict,51 yet whose organization is more amorphous, whose members

do not distinguish themselves from the rest of the population, and the group does not exercise

control over territory. In between these two outer ends are various other types of organized

armed groups. What complicates matters even further is that organized armed groups change,

depending on the phase of an armed conflict and the success or failure of the opposing Party

to contain, disrupt, or defeat them. Against this background, the determination of whether or

not a person is a fighter will be more difficult in some armed conflicts or some phases of an

armed conflict than in others. Much will depend on the availability of sufficient intelligence.

Indeed, an obligation to gather such intelligence with a view to establish the status of a person

flows from the rules on precautionary measures. These rules require, amongst other, that

Parties to an armed conflict do everything feasible to verify that targets are military objectives.

The ICRC Customary Law Study finds these rules to be equally applicable in non-international

armed conflicts.52 If intelligence is ambiguous, the general presumption in favour of civilian

48 The same applies to those persons mentioned in Art. 4A(5) of the Third Geneva Convention, i.e., members of the merchant marine and the crews of civil aircraft of the Parties to the conflict, but these categories are in all likelihood hardly of relevance in the context of non-international armed conflicts as far as organised armed groups are concerned. 49 Similarly, see N. Melzer, supra n. 47, p. 15, especially footnote 32 and accompanying text. 50 The Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka are arguably examples. 51 For the views of international bodies on the required degree of organization, see L. Zegveld, Accountability of Armed Opposition Groups in International Law, Cambridge, Cambridge University Press, 2002, pp. 134-141. 52 Cf., especially in the present context Rule 16 of the Customary Law Study, Henckaerts and Doswald-Beck, (eds.), supra n. 26,, at pp. 51, 55. See also the judgment in the Targeted Killings case of the Israel

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status in case of doubt, which obliges Parties to an international armed conflict to err on the

side of caution,53 appears to be at least equally wise in non-international armed conflicts.54 Not

to do so would increase the risk of the mistaken targeting of civilians to an unacceptable

degree. In practice, such a presumption will at times result in something akin to the specific

acts approach, which makes a person a legitimate target of attack only if and for such time

he/she takes a direct part in hostilities. It is acknowledged that such an approach is open to

the objection that it is incompatible with the principle assumption of equality of the Parties to

an armed conflict before the law. After all, it would ultimately result in members of armed

groups, who fail to distinguish themselves from the civilian population, to be granted more

protection from attack than members of State armed forces. Indeed, it would reward them for

behaviour, which undermines the principle of distinction. However, it needs to be stressed

that this imbalance does not result from granting members of armed groups more rights or

imposing on them less obligations under the laws of armed conflict. Rather, it is the

consequence of the protection from the effects of hostilities to which civilians are entitled.

Conclusion

One can come a long way in conceptualising the principle of distinction in non-

international armed conflicts by way of analogy to the law of international armed conflict,

subject to the important qualification that combatant privilege and prisoner of war status do

not apply. Such a distinction draws the line between those members of organized armed

Supreme Court Sitting as the High Court of Justice, The Public Committee against Torture in Israel et al v. The Government of Israel et al, HCJ 769/02, judgment of 11 December 2005. Although the analysis of the Israeli Supreme Court in that case is based on the law of international armed conflict, it is instructive in the present context, in as much as the case is also concerned with the difficulty of identifying members of armed groups who do not qualify as combatants. In its discussion of the temporal element of the loss of protection of a civilian due to his or her direct participation in hostilities, the Court set forth a differentiated approach. It distinguished a civilian, who takes such part one single time, or sporadically and who later detaches him/herself from such activity, from a civilian who joins a terrorist organization ‘which has become his “home”, and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them’. The former civilian, held the Supreme Court, regains protection as soon as he/she detaches him/herself from that activity, while the latter remains targetable for as long as he/she ‘is committing the chain of acts’ (cf., Judgment at para. 39). The Supreme Court then continued to elaborate a number of safeguards, which, in the view of the Court, make such an approach viable. The first such safeguard is that ‘well based information is needed before categorizing a civilian as falling into one of the discussed categories’ (ibid., para. 40). See also N. Melzer, supra n. 47, p. 44-45. 53 Cf., Art. 50(1) 2nd sentence AP I. 54 L. Moir, The Law of Internal Armed Conflict, Cambridge, Cambridge University Press, 2002, p. 59 (‘[W]here insurgents cannot be differentiated from civilians, they must cease to be legitimate targets’). See also N. Melzer, supra n. 47, p. 45-46.

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groups who assume fighting functions on an ongoing basis (‘fighters’) and all others

(‘civilians’). The former are liable to attack for the duration of their membership, while the

latter are protected unless and for such time as they directly participate in hostilities. At the

same time, the idiosyncrasies of non-international armed conflicts militate against a wholesale

transplant of the principle of distinction, as it applies during international armed conflicts.

This is not only due to intriguing issues under Human Rights Law, which the targeting of

members of organized armed groups during non-international armed conflicts raise and

which I have not addressed.55 Rather, a more nuanced approach is also required due to the

variety and changing nature of organized armed groups. The ‘membership approach’ may be

viable vis-à-vis certain of these groups, but bears the risk of undermining civilian protection if

adopted vis-à-vis others. Much will depend on the concrete circumstances in a non-

international armed conflict and, not the least, the available intelligence. In the absence of

hard and fast rules, if a given approach proves to be acceptable, therefore, ultimately depends

on whether it strikes a reasonable balance between military considerations and humanitarian

concerns.

55 See, e.g., N. Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’, International Review of the Red Cross, Vol.87, 2005,p. 737 at pp. 748-750; L. Doswald-Beck, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers?’, International Review of the Red Cross, Vol.88, 2006, p. 881, pp. 889-891.

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Civilian Direct Participation in Hostilities under International Humanitarian Law

Nils MELZER

Legal Adviser, ICRC

Setting out the factual background for his presentation on “Civilian Direct

Participation in Hostilities under International Humanitarian Law”, Dr. Melzer recalled that

armed conflicts are now predominantly of non-international character, that battlefields have

shifted into civilian population centres, that armed actors often fail to distinguish themselves

properly from the civilian population and that the increasing intermingling of civilians and

armed actors is accompanied by an increasing involvement of civilians in military operations.

All of these factors inevitably lead to confusion as to the distinction between ‘legitimate

targets’ and ‘protected persons’ and emphasize the importance of distinguishing between

civilians directly participating in hostilities, who may be lawfully targeted, and peaceful

civilians, who must remain protected against direct attack.

Recalling the basic rules on lawful targeting of persons under International

Humanitarian Law (IHL), Dr. Melzer then commented that while protections against direct

attack exist in law for non-combatant civilians (and armed force personnel hors de combat or

serving as medical and religious personnel), there is no definition in treaty law, state practice

or jurisprudence of what conduct amounts to "direct participation in hostilities" and,

therefore, leads to loss of civilian protection. This lack of definition leads to a lack of criteria

for the distinction between peaceful civilians and civilians directly participating in hostilities;

and a lack of guidance as to the applicability to hostile civilians of the paradigms of law

enforcement and of hostilities.

In 2003, the ICRC and the TMC Asser Institute therefore initiated a multi-annual,

informal expert process for the clarification of the notion of "direct participation in hostilities"

through the interpretation of existing IHL in the light of the circumstances prevailing in

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modern armed conflicts. The expert process includes between 40 and 50 legal experts from

academic, military, humanitarian, governmental and non-governmental backgrounds, each

participating in their personal capacity. In the course of a number of expert meetings, the

experts addressed the concept of ‘civilian’ under IHL; the basic concept of ‘direct participation

in hostilities’; and the ‘modalities of suspension of protection’. This clarification process is

likely to come to a conclusion in 2008 with the publication of a comprehensive Interpretive

Guidance on the Notion of Direct Participation in Hostilities.

Based on the discussions held at four expert meetings between 2003 and 2006, Dr.

Melzer then provided a summary of the preliminary results of this still ongoing expert

process. With regard to the question of who qualified as a civilian under IHL, the expert

meetings had shown that it was important to distinguish the organized armed forces, groups

and units who actually conduct hostilities on behalf of a Party to an international or non-

international armed conflict ("armed forces" in a functional sense) from civilians, who do not -

or only sporadically, spontaneously or in an unorganized manner – directly participate in

hostilities.

Based on the discussions held during the expert meetings it was suggested that the

notion of "direct participation in hostilities" essentially referred to specific acts carried out by

individuals, which are specifically designed to support one Party to the conflict by directly

causing harm to the military effort or military capacity of another Party or by directly

inflicting death, injury or destruction on persons or objects not under the effective control of

the acting individual. Accordingly, if and for such time as civilians carry out acts meeting

these criteria they lose their civilian protection against direct attack.

The expert meetings also addressed the specific modalities according to which

civilians directly participating in hostilities lose protection against direct attack. In temporal

terms, it was proposed that civilians regain protection in the intervals between specific hostile

acts, whereas members of organized armed forces, groups or units of a Party to the conflict

lose civilian protection for as long as they assume fighting function within such forces.

All feasible precautions have to be taken in determining whether a civilian has lost

protection and, in case of doubt, it must be presumed that the person in question is entitled to

protection against direct attack. If a civilian has lost protection against direct attack, the armed

force may lawfully be used against that civilian to the extent that it is reasonably necessary in

the concrete circumstances and is not otherwise prohibited by IHL.

Civilian direct participation in hostilities is neither prohibited nor privileged by IHL.

In the absence of such prohibition, civilian direct participation in hostilities does not, in and of

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itself, constitute a war crime. However, in the absence of combatant privilege, civilians having

directly participated in hostilities remain subject to prosecution for any act penalized under

domestic law, which they may have committed during their participation.

In concluding his presentation, Dr. Melzer recalled that he was speaking in his

personal capacity and not on behalf of the ICRC and emphasized that these preliminary

results were still subject to further discussion and revision in the course of the expert process.

Military Objectives

Hays PARKS

Associate Deputy General Counsel, United States Department of Defense

It is a pleasure to return to Sanremo following a lengthy absence. My first Sanremo

visit was in 1978, when I attended the Institute’s Fifth Course on the Law of War. I returned

twice more to participate in the Round Table. Upon arrival in 1981 I went for a long run,

following which I fell and broke my cheekbone. I regained consciousness laying on a stainless

steel maternity delivery table in the Sanremo Hospital emergency room surrounded by three

nuns, wondering who this crazy man was clad only in running shoes and shorts. I was

spirited away to a military hospital in Germany to repair the damage. In my forty-year career,

I believe it is the only time where there is proof positive that I fell on my face in the execution

of my duties. I’ll try not to repeat my 1981 performance either figuratively or literally today.

The original title of this panel was Must we revise the definition of military objective? The

panelist arguing for revision was to have been Major General Charles Dunlap, the Deputy

Judge Advocate General of the U.S. Air Force. His views on military objectives have been

widely published and likely would have resulted in spirited debate. When his schedule

precluded his participation, I was invited to step in as a replacement panelist. In addition to

being a poor substitute, the panel’s topic was changed and, I suspect, should prove less

contentious.

General Dunlap and I served as co-panelists at a conference hosted by the German Red

Cross in Berlin in June 2005 honoring Professor Knut Ipsen, where we offered our differing

views on this topic. Given time limitations, it will not be possible to offer our point-

counterpoint in detail. For those interested, I am providing a citation to our papers.

I will touch briefly on three points:

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First, the fact that the United States is not a State Party to the 1977 Additional Protocol

I and its definition of “military objective” in Article 52, paragraph 2, is not germane to today’s

discussion. The United States is a Party to Amended Protocol II of the 1980 Convention on

Certain Conventional Weapons, which contains the same definition. The United States has

applied the definition in its targeting determinations for more than two decades. While the

ICRC’s Customary International Humanitarian Law conclusion that “State practice establishes

… [Article 52, para. 2 is] a norm of customary international law applicable in both international and

non-international armed conflicts” may be overly ambitious, the fact remains that the military

objective definition enjoys broad acceptance.

With respect to the details of the definition, both Major General A.P.V. Rogers and

Professor Yoram Dinstein have offered excellent descriptive explanations in their respective

works. In large measure their explanations have been incorporated into the new British

Manual of the Law of Armed Conflict. They have proved invaluable in discussion of military

objective in the forthcoming U.S. law of war manual as well.

Second, there has been much debate in some circles as to whether or not objects that

are “war sustaining” are military objectives. Terms such as “war-fighting” “war-sustaining”

are descriptive rather than legal terms. As I concluded in my 2005 Berlin paper, I found the

arguments to be a wonderful academic exercise from which otherwise there is little to be

gained. The definition of military objective in Additional Protocol I and the CCW indicates an

object becomes a military objective when by virtue of its “nature, location, purpose or use

makes[s] an effective contribution to military action and whose total or partial destruction, capture or

neutralization, in the circumstances ruling at the time, offers a definite military advantage.” “Military

advantage” was not intended to be limited to tactical gains or otherwise range limiting. If an

object falls within the definition, it is a military objective. Discussion as to whether or not an

object is not a military objective because it may be “war fighting” or “war sustaining” is

speculative in the absence of a clear view of a specific conflict, a particular object, and a

specific set of circumstances at the time a decision must be made.

The third point is the one on which I’d like to spend the greatest part of my time, as I

believe it focuses on the concerns of many. This involves the suggestion by General Dunlap

and a protégé of his, Major Jeanne Meyer, an Air Force judge advocate, of broadening or

revising the definition of military objective to include attacks on civilian morale. Brigadier

General Dunlap argues for making certain civilian objects into military objectives in order to

attack civilian morale – what I refer to as “boutique bombing” -- while Major Meyer suggests

target selection with an emphasis on civilian morale. General Dunlap also argues for a return

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to a form of Just War Tradition in target selection where the enemy is “evil.” I respectfully

but strongly disagree with these arguments.

In my years of research I have been fascinated and amused by the degree to which

attacks on civilian morale have been a Holy Grail for some airpower advocates. During and

following World War I Royal Air Force Air Marshal Lord Trenchard asserted that “the moral

[morale] effects of bombing [including bombing the civilian population] outweighed the material at a

ratio of twenty to one,” prompting one airpower historian to observe that Trenchard was the

master of the “wholly unfounded statistic.”

The argument of Trenchard and other airpower advocates did not receive universal

acceptance. Writing as Minister of Munitions in October 1917, Winston S. Churchill stated:

It is improbable that any terrorization of the civil population which could

be achieved by air attack would compel the Government of a great nation

to surrender…. In our own case we have seen the combative spirit of the

people roused, not quelled, by the German air raids…. Nothing that we

have learned of the capacity of the German population to endure suffering

justifies us in assuming that they would not be rendered more desperately

resolved to them.

Nonetheless advocates in France, Italy, Germany, Great Britain and the United States

pursued attacks on civilian morale as a justification for airpower development, as a “bonus”

airpower could bring to winning a war with a “knock-out” punch.

The Royal Air Force used the “morale bombing” argument to sustain its existence

between World Wars I and II. It put theory into practice through RAF ‘policing’ of its colonies

in Somaliland, Iraq, Palestine, India, South-west Arabia, and parts of its colonial empire in

Africa. Indigenous tribes whose conduct strayed were persuaded to return to British colonial

ways with a “demonstration” bombing by RAF aircraft adjacent to their village, employing

this new means of warfare to “shock” them. When the demonstration failed, attacks on

villages and their populations followed, usually with military success but with a disregard for

legality issues. RAF “policing” validated its concept of attacks on civilian morale. As one RAF

officer commented in 1923:

The shocks and interruptions, the inconvenience and indignity of it all,

will tell in the end. The civilized nation will go through the same three

phases as did the semi-civilized tribe: alarm, indifference, weariness,

followed ultimately by compliance with our will.

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Ironically, advocates of “attacks on civilian morale” always attributed a vulnerability

of enemy civilian morale to such attacks while concluding that its own civilian population

was of “stronger character” and able to withstand such attacks. The obvious point is that the

line between lawfully bombing economic and industrial targets with an “intentional but

incidental” effect on the morale of the civilian population vis-à-vis bombing an enemy civilian

population solely for the purpose of terrorizing it was a thin one, with airpower advocates

emphasizing the former while denying the latter. In some respects, this was a subtle advance

in the law. In denying that attacks on civilian morale had as their purpose terrorization of the

civilian population, advocates acknowledged that attacks to terrorize the civilian population

were illegal. But advocates of “morale bombing” pushed the line to its breaking point. In

World War II, that breaking point was crossed by Axis and Allied air forces without success in

breaking enemy civilian morale.

Marshal of the Royal Air Force Sir Arthur Harris, commander of Royal Air Force

Bomber Command from early 1942 to the end of the war in Europe, concluded that “The idea

that the main object of bombing German industrial cities was to break the enemy morale proved to be

totally unsound…. [M]orale bombing was completely ineffective against so well-organized a police state

as Germany.” Harris’s remarks mirror those of the post-war British Bombing Survey Unit,

which concluded “In so far as the offensive against German towns was designed to break the morale

of the German civilian population, it clearly failed,” a conclusion shared by the U. S. Strategic

Bombing Survey.

The historical record is well established: attacks on civilian morale as such have not

been effective. Article 51, para. 2 of Additional Protocol I states:

The civilian population as such, as well as individual civilians,

shall not be made the object of attack. Acts or threats of violence

the primary purpose of which is to spread terror among the

civilian population are prohibited.

What constitutes either an “attack on civilian morale” or “acts or threats of violence

among the civilian population” requires definition. Incorporation of the words “acts or threats

of violence the primary purpose of which is to spread terror among the civilian population” constitutes

an acknowledgement that civilians will experience fear and possibly terror as a result of

lawful attacks on military objectives near them. The language prohibits attacks intended for

the purpose of causing fear or terror rather than an effect that is a natural consequence of

lawful military actions. The prohibition remains vague, however. The ICRC Commentary on

Additional Protocol I states: “The provision is intended to prohibit acts of violence the primary

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purpose of which is to spread terror among the civilian population without offering substantial military

advantage.” This unfortunate and rather strange choice of words [in italics] incorrectly

suggests attacks to terrorize remain legally permissible if such attacks offer a substantial

military advantage.

World War II “morale” bombing had a drug-addictive effect on its proponents. When

morale attacks failed, British and American air leaders sought more, arguing that one (or

more) days of massive bombing of German cities would cause a collapse of civilian morale

and force an end to the war. A subsequent analysis concluded that “Only when Germany was

overrun and Hitler died did the will to resist finally flicker out.”

Today, some airpower enthusiasts continue efforts to resurrect attacks on civilian

morale, notwithstanding the lessons of history or present-day law of war prohibitions.

Thus on February 25, 1991, on the eve of the Coalition ground offensive to liberate

Kuwait, the Commander, U.S. Central Command, announced his approval of air strikes that

evening to destroy a statue of Saddam Hussayn and the “Hands of Victory” monument. Each

was identified as a “psychological target,” with the implausible argument that upon learning

that each had been destroyed, revealing Saddam’s impotence, the Iraqi people would rise up

and oust Saddam, alleviating the need for Coalition ground combat operations. A neglected

detail is that the two objects had been on the list of nominated targets since December 1990,

but had not been approved for attack because they were regarded as having little to no

military value.

Eventually the Commander, U.S. Central Command, the Secretary of Defense, and

Chairman, Joint Chiefs of Staff, agreed these were not military objectives. Yet there remains a

continuing temptation by some to exploit airpower’s capabilities to attack civilian morale in

the face of history and obvious policy, legal and moral issues. This penchant by some for some

theoretical “knock-out punch” through airpower undoubtedly is the point giving many

concerns about a broader definition of military objective.

The recent articles by Brigadier General Dunlap and Major Meyer argue for a limited

return to targeting morale. However limited, their arguments are a step back to earlier but

unsuccessful airpower arguments that wars could be prevented or ended sooner with an

attack on civilian morale. History proves this is a perilous slippery slope.

Such arguments are inconsistent with the lessons not only of history but present day.

Civilians and civilian morale have been subjected to terrorist attack around the world – in

New York City, Washington, Riyadh, Nairobi, Dar es Salaam, Bali, Jakarta Casablanca,

Istanbul, Madrid, and London, to name a few. These attacks initially may have struck fear in

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the civilian population. In the long run civilians steeled themselves against the attacks and

became more defiant in their resistance.

Recognition is due to the tremendous technological progress of the past four decades

with respect to development of precision guided weaponry, spurred primarily by the U.S. Air

Force. These advances employ technology to comply with the law of war principle of

distinction, but also for the military advantage gained in terms of reduced aircraft sorties,

reduced munitions expenditures, and risk to aircrews. But technological advances cannot

become the tail wagging the dog in devaluing sound law of war provisions that enable a

civilian object to become a military objective only when there is a “definite military advantage”

rather than what history shows has proved a highly speculative argument.

Thank you.

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The Definition of Military Objectives

Knut DÖRMANN

Head of the Legal Division, ICRC

The definition of military objectives is set forth in Article 52(2) of Additional Protocol I

to the four Geneva Conventions56 (AP I). The definition has been used consistently in

subsequent treaties, namely in Art. 2(4) of Protocol II57, Art. 2(6) of the Amended Protocol II58

and Art. 1(3) of Protocol III59 to the Convention on Certain Conventional Weapons, as well as

in Art. 1(f) of the Second Protocol to the Hague Convention for the Protection of Cultural

Property60. Numerous military manuals contain this definition of military objectives. The

definition is crucial for the implementation of the principle of distinction, which requires that

the Parties to the conflict must at all times distinguish between the civilian population and

combatants and between civilian objects and military objectives and accordingly must direct

their operations only against military objectives.61

Based on its collection of State practice and opinio iuris62 the ICRC like many others,

including international tribunals, consider that the definition reflects customary international

law in both international and non-international armed conflicts. This is certainly an important

point of departure. However, while we may agree on the customary nature and the general

56 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 57 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II). Geneva, 10 October 1980. 58 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996). 59 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). Geneva, 10 October 1980. 60 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999 61 Art. 48 AP I. 62 Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, Volume II. Practice (2 Parts), Cambridge University Press, 2005, pp. 181-232.

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formulation of the definition, this does not mean that there is no disagreement on certain

interpretations of the definition's elements. Controversies thus relate mainly to its application

in certain specific situations.

Article 52(2) AP I contains a generic definition rather than a specific list of military

objects. It adopts a two-pronged test for the assessment of each attack: the object to be

attacked must by its nature, location, purpose or use contribute effectively to the military

action of the enemy and its destruction, capture or neutralization must offer a definite military

advantage for the other side in the circumstances ruling at the time. Both conditions must be

met cumulatively.

The definition of military objectives, read together with the principle of distinction, the

prohibition of indiscriminate attacks, the obligation to minimize civilian casualties, as well as

the principle of proportionality, clearly rejects interpretations advanced formerly in doctrines

of "total warfare", which included as military objectives "any objectives which will contribute

effectively towards the destruction of the enemy's means of resistance and the lowering of his

determination to fight".

The elements of the two-pronged test in Art. 52 (2) AP I have been subject to much

debate. Partly, States have attempted to bring more clarity by making declarations upon

signature or ratification. Military manuals provide also important explanations.

By referring to objects, the definition relates to material and tangible things. Thus,

victory, public will, or morale cannot be legitimate objects of attack.

The words “nature, location, purpose or use” in the first prong are quite encompassing.

They recognise that objects can contribute in a variety of ways to military action.

There has been some debate on the concrete implications of the term “purpose”. It is

generally submitted that the criterion of 'purpose' is concerned with the intended future use of

an object. However, what does “intended future use” encompass? Clearly, if the mere

possibility that an object might be converted into some military use would be sufficient, then

almost no limits in target selection would exist. As a limiting factor it has been suggested that

“purpose is predicated on intentions known to the adversary, and not on those figured out

hypothetically in contingency plans based on a ‘worst case scenario’”.

Still on the first prong, according to the definition the object must “effectively”

contribute to the military action of the enemy. The generally accepted view is that “to qualify

as a military objective, there must exist a proximate nexus to military action (or ‘war-fighting’).”

However, it is argued that there is no need for a direct connection with specific combat

operations.

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Let me move to the second prong of the definition. By referring to “definite military

advantage” the drafters excluded advantages, which are only hypothetical and speculative.

The military advantage must be concrete and perceptible. It must also be related to a finite

event, to a concrete situation on the ground and cannot be confused with the entire war. The

adjective “military” limits lawful targets to those, which serve a military, rather than, for

example, a political or economic purpose. Forcing a change in the negotiating attitudes of an

adverse Party can therefore not be deemed a proper military advantage.

The criteria must be fulfilled “in the circumstances ruling at the time”, not at some

hypothetical future time. Thus, Art. 52 AP I has a clear temporal dimension, which works

both ways. An object, which is normally used for civilian purposes, may turn into a military

objective once it is used for military purposes. An object, which has been used militarily, may

become (again) a civilian object when the military use is abandoned. Thus, timely and reliable

information of the military situation is an important element in the target selection and

essential for the implementation of the principle of distinction.

Without these elementary restrictions, the limitation of lawful attacks to military

objectives could be too easily undermined and the principle of distinction rendered void.

Albeit the above-mentioned clarifications, due to the general formulation, the contours

of notions like “effective contribution to military action” and “definite military advantage” are not

always absolutely clear, and may sometimes invite quite expansive interpretations to the

detriment of the civilian population.

Some selected challenges in interpretation with regard to specific target groups

Military action vs war-sustaining

The US Commander’s Handbook on the Law of Naval Operations substitutes the words

military action by the formulation “war-fighting or war-sustaining”. While there is no problem

in using the term “war-fighting”, the situation is less clear with regard to “war-sustaining”. The

discussion largely concerns the question to what extent economic targets, but possibly also

psychological targets, can be the object of an attack. Hays Parks in his presentation to this

Round Table takes the view that military action also includes “war sustaining” and describes

the debate as academic. But is that so? In my view, the criterion of war-sustaining has been

rightly criticized as too lax. This concern may be illustrated by the example provided in the

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“Annotation to the Commander’s Handbook”.63 Reference is made there to the destruction of

raw cotton within Confederate territory by Union Forces during the American Civil War. The

justification was that sale of cotton provided funds for almost all Confederate arms and

ammunition. The connection between military action and exports, required to finance the war

effort, does however seem too remote. As Prof. Dinstein states: “Had raw cotton been

acknowledged as a valid military objective, almost every civilian activity might be construed by the

enemy as indirectly sustaining the war effort.”64 To elaborate on this: doesn't the concept of war-

sustaining bear the risk that attacks could be aimed directly at the economic capacity of the

adversary? What about attacks against the stock market, taxation authorities, etc.? This

questioning should not be misunderstood. I believe that it is correct to say that economic

targets may be military objectives under certain circumstances, but there must be then a

proximate nexus to military action or war-fighting. In any case, in order to assess whether we

are quarrelling merely on semantics or whether there is more to it, one need to discuss

concrete cases and see whether both approaches come to the same conclusions.

Dual-use objects

A particular problem arises with regard to objects that serve both civilian and military

purposes, such as airports, oil refining facilities or electricity generating plants, objects, which

are sometimes called dual-use objects. It should be stressed that "dual-use" is not a legal term.

The special feature of an attack against such objects is that it inevitably affects the civilian

population. Looking at the structure of Art. 52 AP I, there is no intermediate category. The

negative definition of civilian objects means that military objectives and civilian objects are

mutually exclusive. The nature of any object must be assessed under the definition of military

objectives provided for in Additional Protocol I. Thus, it may be held that even a secondary

military use may turn such an object into a military objective.

However, an attack on such an object may nevertheless be unlawful if the effects on

the civilian use of the object in question violate the rule of proportionality, i.e. if the attack

may be expected to cause excessive incidental civilian damages or casualties, or if the methods

or means of the attack are not chosen with a view to avoiding or at least minimizing incidental

civilian casualties or damage. In making the proportionality assessment, the civilian part of

the object affected by the attack, including foreseeable reverberating effects, must be counted 63 A.R. Thomas/James C. Duncan (eds.), “Annotated Supplement to The Commander's Handbook on the Law of Naval Operations”, International Law Studies, Vol. 73, 1999, p. 403. 64 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, p. 87.

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among the incidental civilian damage in addition to the possible civilian damage to civilian

property in the vicinity.

Objects normally used for civilian purposes

There is considerable debate as to when traditionally civilian objects may make an

effective contribution to military action and become legitimate military targets. One

contentious example of past armed conflicts has been the case of TV and radio stations. While

it should be without doubt that TV and radio stations become military objectives if they are

used for military communications or to transmit military orders, this should not be the case if

they serve as a mere propaganda instrument or as a line of communication between the

regime and its population. It would be more than doubtful whether the latter use could

legitimately be considered an "effective contribution to military action". The unpredictability of a

population’s actions in regard to its government in a time of national crises makes it

impossible to conclude that destroying media facilities will provide a “definite” advantage.

Also the military nature of such claimed advantage is doubtful. As Marco Sassoli and Lindsey

Cameron have pointed out targeting media or broadcasting stations in order to prevent the

regime under attack from communicating with its civilian citizens, defending its reasons for

fighting and disseminating propaganda is tantamount to attacking the public will to maintain

the conflict.65

Those who justify attacks on these grounds sometimes introduce distinctions based on

whether the regime that uses the media facilities fights an unjust war. Such arguments clearly

run counter the basic tenet that the application of the ius in bello is independent of

considerations stemming from ius ad bellum. Any attempts to conflate the two should be

rejected, not just because each Party to an armed conflict will claim that its use of force is

justified under the rules of ius ad bellum, but more importantly the victims of both sides

deserve the same protection.

65 Marco Sassòli, Lindsey Cameron, “The Protection of Civilian Objects – Current State of the Law and Issues de lege ferenda”, in: Natalino Ronzitti, Gabriella Venturini (eds), Current Issues in International Humanitarian Law of Air Warfare, Utrecht, 2006, p. 54.

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New approaches which may be seen as widening the definition

Some voices in essentially military writing suggest the necessity of influencing the

public will in order to bring hostilities to a quicker end and therefore see the political,

economic, social or psychological importance of objects as possible determining factors.

Certain theorists advocating effects-based targeting are even willing to accept that civilian

private property which is not essential for the civilian survival be directly attacked and also

include psychological targets.66 However, if such an approach would be followed, the

assessment of whether an object is a lawful target would invite boundless interpretations and

be highly speculative. The thinking is based on an at least unproven premise – that attacking

civilian objects will shorten conflicts by influencing public will; history shows rather that

attacks that made life more difficult for civilians during the Second World War and other

conflicts had the effect of crystallizing support for the existing regimes.67 By the same token,

interpretations that accept attacks on the morale of the civilian population as a means of

influencing the enemy's determination to fight would lead to unlimited warfare, and should

be rejected. The step from causing mere hardship to the civilian population, which is an

inevitable consequence of all armed conflicts, to causing substantial damage to, for example,

civilian infrastructure, would be very small indeed and could lead belligerents to slowly give

up any form of restraint in the choice of targets. Such theories in fact seem to give up the

criterion of “effective contribution to military action”. No alternative limiting criteria are

proposed that would guarantee a minimum of humanity in an armed conflict and that could

be objectively assessed – without too many speculations about causalities and future impacts

on the enemy.

Is there a potential for further clarification?

The current definitional approach favours a flexible definition. Art. 52(2) AP I is a

valuable guide, but not always easy to interpret, particularly for those who have to decide

about an attack and on the means and methods to be used. Despite the challenges of

interpretation created by such an approach, this approach remains the best possible. It allows

taking into account that the battlefield situation may change, e.g. objects used for military

purposes at a certain point may not be used for such purposes at a later point in time. The

66 Charles P. Dunlap, “The End of Innocence: Rethinking Non-combatancy in the Post-Kosovo Era”, Strategic Review, 2000, p. 9. 67 Marco Sassòli, Lindsey Cameron, ibid., p. 60 et seq.

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definition is adaptable enough to remain relevant in changing conflict environments.

However, it heightens the importance of a good faith implementation.

In the light of the fairly general wording of the definition of military objectives, there

seems to be a prima facie necessity to attempt to work for further clarification – at least to reach

agreement on the main parameters that must be taken into account when applying the two-

pronged test. Also the many discussions on the legitimacy of certain attacks in past and

current armed conflicts seem to argue in favour of a need to further clarify. When looking at

particular attacks in order to extrapolate more general guidance, it will be crucial that

everyone argues on the basis of the same facts.

Should the generic definition be completed / clarified by a list of objects that may be

military objectives? Many attempts have been made in the past. Obviously, examples can add

clarity to generic definitions. But it must always be kept in mind that such a list, if agreement

could be reached, would necessarily not be exhaustive. In addition, the mere fact that an

object is on the list, such as lines of communication, does not mean that it is necessarily a

military objective. It must still be shown that the object makes an effective contribution to

military action and its destruction/capture/neutralization offer a definite military advantage.

To conclude, the definition is fine, but there may be potential for interpretive

clarification.

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METHODS AND MEANS OF WARFARE

86

Human Shielding from the Attacker’s Perspective

Michael N. SCHMITT

Stockton Professor of International Law, United States Naval War College

Although an increasingly prevalent feature of 21st century warfare, human shielding,

labelled “counter-targeting” in military parlance, hardly represents a new tactic on the

battlefield. On the contrary, shields were employed in the American Civil War, the Boer War,

both World Wars, the Gulf War of 1990-91, and operations in the Balkans (including the use of

captured UN military personnel). More recently, the Iraq Army and Iraqi insurgents have

used human shields during Operation Enduring Freedom, Hamas has done so in the Occupied

Territories, and Hezbollah adopted the practice during Operation Change Direction, the 2006

Israeli incursion into Lebanon.

In great part, the dramatic asymmetry characterizing many of today’s conflicts

engenders human shielding. Confronted with overwhelming technological superiority,

weaker Parties have turned to shielding as a method of warfare designed to counter attacks

against which they cannot effectively defend using the weaponry and forces at their disposal.

The tactic presumes that the prospect of killing civilian shields will sometimes deter an

attacker from striking military objectives.

This presumptive deterrence can manifest itself in one of three ways (or a combination

thereof). First, the attacking side may refrain from attack due to moral concerns about

harming civilians who, in some cases, may have been forced to act as shields. Second, the

attacker may abandon a planned attack because of possible negative communicative

consequences. After all, images and accounts of dead and injured civilians transmitted

throughout the globalised media (which is often silent as to the resulting military advantage)

can make it appear as if the attacker has mounted inhumane operations. In many cases, this is

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the very objective of the party employing shields. It seeks a weakening of support for the

enemy’s war effort (or the generation of opposition thereto) on the part of the international

community, other States (including coalition partners), non-governmental organizations, and

individuals, as well as enhanced support for its own position. In this regard, even a tactical

event that results in civilian casualties poses the risk of strategic consequences. Third, at a

certain point, the number of civilians likely to be injured or killed in an attack against a

military objective may be excessive relative to the military advantage anticipated from the

attack, such that the principle of proportionality, discussed below, bars attack as a matter of

law. Using the law in a manner intended to impede the enemy’s operations (at the tactical,

operational or strategic levels) has been called lawfare. Importantly, lawfare not only includes

instances in which the intended operation would in fact be unlawful, but also those in which

the attacker’s operations might be perceived as unlawful.

This contribution to the Round Table analyses the International Humanitarian Law

(IHL) applicable to those who face human shields -- the “attackers.” It is undisputed that the

use of human shields violates IHL. With respect to international armed conflict, Additional

Protocol I (API), Article 51.7 provides:

“The presence or movement of the civilian population or individual civilians shall not be used

to render certain points or areas immune from military operations, in particular in attempts to shield

military objectives from attacks or to shield, favour or impede military operations. The Parties to the

conflict shall not direct the movement of the civilian population or individual civilians in order to

attempt to shield military objectives from attacks or to shield military operations.”68

Pursuant to the Statute of the International Criminal Court, Article 8(2)(b)(xxiii),

“utilizing the presence of a civilian or other protected person to render certain points, areas or military

forces immune from military operations” constitutes a war crime in international armed

conflicts.69 The International Committee of the Red Cross’ International Customary

International Humanitarian Law study, Rule 97, provides that “[t]he use of human shields is

prohibited”, asserting that the norm applies in both international and non-international armed

68 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Art. 51.7, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter AP I]. See also, Article 12.4 of AP I, which provides that “under no circumstances shall medical units be used in an attempt to shield military objectives from attack”; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 28, 6 U.S.T. 3516, 3518-20, 75 U.N.T.S. 287, providing “the presence of a protected person may not be used to render certain points or areas immune from military operation.” 69 Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9*, 37 I.L.M. 1002 (1998).

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conflict.70 The San Remo Manual on the Law of Non-International Armed Conflict, paragraph 2.3.8,

is in concordance regarding non-international armed conflict: “The use of civilians (as well as

captured enemy personnel) to shield a military objective or operation is forbidden. It is also forbidden to

use them to obstruct an adversary’s operations.”71

In 2005, the Israeli Supreme Court addressed shields in Adalah (the “Early Warning”

case). The Court specifically found unlawful the Israeli use of Palestinian civilians as

“shields” to walk through buildings suspected of being booby-trapped, enter areas before

soldiers, and accompany Israeli forces to prevent attacks. Although the Israeli Defence Force

forbade the practices prior to the litigation, the Court nevertheless confirmed their illegality.72

It also condemned the use of civilians to convey warnings to surrender to wanted persons in

places besieged by the Army, even when the civilians were not “forced” to issue the

warning.73

That treaty and customary law forbid the use of human shields is unquestionable.

However, the sole provision applicable to the attacker’s obligations in shielding situations is

AP I, Article 51.8: “Any violation of these prohibitions shall not release the Parties to the conflict from

their legal obligations with respect to the civilian population and civilians, including the obligation to

take the precautionary measures provided for in Article 57.” The customary nature of the provision

is uncertain. In light of the paucity of express norms, the traditional IHL applicable to attacks

in general governs the attacker’s reaction thereto. These include the notion of direct

participation, the principle of proportionality and the requirement to take precautions in

attack, all discussed infra.

When analysing the obligations shouldered by an attacker faced with shielding of a

military objective, it is useful to distinguish between voluntary and involuntary shields. The

former elect to shield, whereas the latter are either compelled to do so or the Party facing

attacks takes advantage of their presence. For the purposes of simplicity, the following

examination will focus on international armed conflict; however, the analysis would apply

equally in non-international armed conflict.

Voluntary Shielding

70 Jean-Marie Henckaerts & Louise Doswald-Beck (eds.), ICRC, Customary International Humanitarian Law, 2005, Rule 97 [hereinafter CIHLS]. 71Michael N. Schmitt, Charles H.B Garraway and Yoram Dinstein, The San Remo Manual on the Law on Non-International Armed Conflict, International Institute of Humanitarian Law, 2006, reprinted in Israel Yearbook on Human Rights, Vol.36, 2006 (Special Supplement). 72 HCJ 3799/02 Adalah v. GOC Central Command [June 23, 2005], para. 21. 73 Id., para. 25.

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Voluntary shielding has occurred in a number of ways during recent conflicts. At

times, officials or other influential individuals have encouraged the civilian population to

“protect” potential sites of attack. For instance, Iraqi officials urged Iraqis to engage in

shielding during Operation Desert Fox, the 1998 air assault against Iraq in response to its

expulsion of UN weapons inspectors. At other times, individuals have engaged in shielding

sua sponte. Prior to the commencement of Operation Iraqi Freedom in 2003, for example, foreign

peace activists travelled to Iraq to act as shields, although they generally withdrew before the

air campaign began.

Three approaches to voluntary shielding appear in the literature and in academic and

professional discourse. The first represents the most restrictive. This approach treats

voluntary shields as civilians who are fully entitled to all the IHL protections civilians enjoy.

They are immune from attack pursuant to API, Article 51.1, universally accepted as customary

in nature. Moreover, they factor fully into the proportionality analysis that Articles 51.5(b)

and 57.2(b) require. Both provisions reflect customary law.74 The principle requires attackers

to refrain from any attack “which may be expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to

the concrete and direct military advantage anticipated.” In other words, there would be no

difference in determining excessiveness as between voluntary shields, on the one hand, and

civilians who simply happened to be in the target area and were likely to be harmed

incidentally, on the other.

A similar treatment of the shields would apply to the precautions required of attackers

under Article 57 and customary law. By these requirements, they must employ alternative

means (weapons) and methods (tactics) of warfare, and select other targets, if doing so would

result in fewer incidental civilian injuries or death (assuming a similar military advantage was

attainable). In that this first approach unqualifiedly characterizes voluntary shields as

civilians, efforts to minimize harm to them would be required, even in the absence of

“innocent” civilians who might also be spared by the precautions in attack.

The approach, albeit prevalent, poses a major dilemma. By the proportionality

principle, the Party using the shields can absolutely immunize a target from attack…as a

matter of law. It is simply a matter of gathering enough human shields in the target area to

render the resulting harm to them “excessive.”

74 CIHLS, supra note 3, rule 14.

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A second approach to voluntary shields, one adopted by the Israeli Supreme Court in

its landmark “targeted killings” judgement,75 avoids this result by treating them as direct

participants in hostilities. By API, Article 51.3, civilians lose protection from attack “unless and

for such time as they take a direct part in hostilities.” The norm is customary in nature, although

significant disagreement exists over both the acts that rise to the level of direct participation

and the duration of the loss of protection.76

Advocates of the first (full civilian) approach argue that shielding does not amount to

direct participation in that it fails to meet the requisite qualitative threshold. Specifically, they

assert that shields are neither defending the military objective in the sense of posing a threat

to the attacker, nor physically impeding attack, for instance by intentionally blocking passage

of enemy forces across a bridge. In their view, simply causing the attacker moral pause or

constituting a legal restriction is insufficient.

Such arguments are illogical. A civilian who takes up arms against an attacker may

well be less effective in deterring or defending against attack than one who shields. After all,

an attacker can still strike a target that is being defended, whereas it may not do so as a matter

of law once a sufficient number of shields have gathered such that attack would be

disproportionate. Even beyond the law, the technology fielded by asymmetrically

advantaged military forces has increasingly rendered defensive systems ineffective, while the

“CNN effect” generated by images of civilian casualties has enhanced the effectiveness of

shields in precluding attack. Therefore, from an operational perspective, treating voluntary

shields as direct participants makes much sense. Any distinction between physical

impediments to attack and legal, moral or communicative ones simply flies in the face of the

realities attendant in contemporary warfare.

The characterization also finds root in the balance between military necessity and

humanitarian considerations that underpins all International Humanitarian Law. Noted as

early as the 1868 St. Petersberg Declaration, IHL “fix[es] the technical limits at which the

necessities of war ought to yield to the requirements of hostilities.”77 In other words, IHL takes

cognizance of the military’s need to fight effectively by tempering humanitarian norms with

military common sense. This must be the case, for it is States, through either lex scripta or

75 HCJ 796/02, The Public Committee against Torture v. Israel, Judgement (Dec. 13, 2006) 76 CIHLS, supra note __, rule 6. 77 St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297.

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practice maturing into custom, which create IHL. States would never accept humanitarian

norms that deprived them of their ability to engage successfully in warfare.

In that shielding leverages IHL’s humanitarian concerns for military gain, it wildly

skews this delicate balance. Existing positive norms take account of the balance; as treaty law,

they reflect State consensus on how the balance is to be set…and maintained. Yet, when the

evolving nature of conflict reveals a lack of normative clarity, black letter rules must be

interpreted in the manner that best reflects the foundational balance underlying IHL. Article

31 of the Vienna Convention on the Law of Treaties bolsters this approach by requiring

interpretation in accordance with the “object and purpose” of a treaty.78 All IHL treaties reflect

the object and purpose of maintaining the military necessity-humanitarian considerations

without which no such treaty would be possible.

Styling voluntary shields as direct participants may concern some that they may, as a

consequence, be directly targeted. While this is true as a matter of law, in practical terms

doing so would serve little practical purpose. Quite aside from the negative publicity any

such action would generate, attacking shields would violate the military principle of “economy

of force.” That principle suggests that commanders should preserve their assets for use against

the most lucrative targets; killing shields would serve little military purpose.

Since voluntary shields lose their protection from attack, they self-evidently do not

factor into a proportionality analysis as incidental injury. Similarly, they would not be

considered in assessing whether alternative weapons, tactics or targets could minimize

incidental injury and death of civilians pursuant to the precautions in attack requirements.

A third approach to voluntary shields discounts them in proportionality calculations

and precautions in attack analyses. As this approach applies most notably to treatment of

involuntary shields, discussion thereof shall occur in that context.

Involuntary Shields

In examining the IHL applicable to involuntary shields, it is first necessary to

determine whether they qualify as such. The presence of civilians on the battlefield is a

common incident of modern warfare, particularly in light of the modern weaponry that

makes strikes throughout the enemy’s territory possible from the outset of a conflict. Such

civilians enjoy the full protection of IHL.

However, when a Party intentionally takes advantage of said protections as a form of

counter-targeting without the acquiescence, or perhaps even knowledge, of the civilians in 78 Vienna Convention on the Law of Treaties Art. 31, May 23, 1969, 1155 U.N.T.S. 331.

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question, the act qualifies as human shielding which, in the opinion of many experts, merits

different treatment. As with voluntary shielding, there are three possibilities.

An extreme view urges that the involuntary shields should not be considered at all in

the proportionality and precautions in attack analyses because an enemy violating IHL should

not be allowed to benefit from its malfeasance. However, IHL contains scant precedent for

allowing a Party to support the loss by a civilian of his or her protected status due to the

unlawful action of the enemy. The sole possible exception is the law of reprisal, which permits

a Party facing IHL violations to resort to IHL violations in order to force its opponent back

into compliance. Even this exception is highly controversial; AP I in particular dramatically

curtails its use for States Party.79

A polar opposite approach treats involuntary shields as civilians entitled to the full

benefits of their IHL protections. The underlying premise of the approach is that the relevant

IHL provisions operate in favour of individual civilians, not the Parties to the conflict.

Therefore, neither Party should be allowed to deprive them of their protections. It is this very

premise on which the shielding prohibitions are based.

AP I, Article 51.8, set forth above, provides further support for treating involuntary

shields as fully entitled civilians. By the article, a violation of the provisions on the protection

of civilians, including the prohibition on shields, does not release the opposing side from its

own obligations vis-à-vis civilians. Thus, so the argument goes, involuntary shields should

factor fully into proportionality and precautions in attack assessments.

A third approach retains the characterization of shields as civilians who retain

immunity from attack, but suggests that they should be discounted when calculating

incidental injury for proportionality (and precautions) purposes. The UK Manual of the Law

of Armed Conflict adopts this position for British Forces.80 Specifically, paragraph 2.7.2

provides that:

“[e]ven where human shields are being used, the proportionality rule must be considered.

However, if the defenders put civilians or civilian objects at risk by placing military objectives in their

midst or by placing civilians in or near military objectives, this is a factor to be taken into account in

favour of the attackers in considering the legality of attacks on those objectives.”

Para 5.22.1 is even more unequivocal: “The enemy’s unlawful activity may be taken into

account in considering whether the incidental loss or damage was proportionate to the military

advantage expected.”

79 See, e.g., API, supra note, Art.s 20, 51.6, 52.1, 53(c), 54.4, 55.2, 56.4. 80 UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004.

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The approach has found advocates in academia. Most notably, Professor Yoram

Dinstein has argued that in the face of involuntary shielding,

“the principle of proportionality remains prevalent. However, even if that is the case, the actual

test of excessive injury to civilians must be relaxed. That is to say, the appraisal whether civilian

casualties are excessive in relation to the military advantage anticipated must make allowances for the

fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be

higher” 81

Major General APV Rogers takes a similar approach when commenting on how a

tribunal considering the practice might respond. In his opinion, it would

“be entitled to take all the circumstances into account and attach such weight as it considers

proper to such matters as the defender’s…deliberate use of civilians or civilian objects as a cover for

military operations…or use of hostages or involuntary ‘human shields.’ It is submitted that the

proportionality approach by tribunals should help redress the balance [between the rights and duties of

attackers and defenders] which otherwise would be tilted in favour of the unscrupulous.”82

Those opposed to this position reply that there is no precedent in IHL for discounting

civilian value in a proportionality analysis. In fact, a somewhat analogous situation, workers

in a munitions factory, is well-discussed in the literature. Although virtually all

commentators agree that the worker is a civilian who is not directly participating in hostilities,

many take the view that he or she is not entitled to the full benefits of civilian status while at

work. General Rogers, for example, cites “use of civilians in war support activities” as one of the

factors a tribunal would consider when making affected proportionality assessments,83

while Professor Dinstein has stated that industrial plant workers “enjoy no immunity while at

work. If the industrial plants are important enough…, civilian casualties – even in large numbers –

would usually come under the rubric of an acceptable collateral damage.”84 Perhaps most

persuasively, the Michael Bothe, Karl Partsch and Waldemar Solf 1982 Commentary on the

Additional Protocols states that “it is doubtful that incidental injury to persons serving the armed

forces within a military objective will weigh as heavily in the application of the rule of proportionality

as that part of the civilian population which is not so closely linked to military operations.”85

81 Yoram Dinstein, The Conduct of Armed Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, p.131. 82 A.P.V. Rogers, Law on the Battlefield, 2nd ed., 2004, p.129 83 Id. at 131. 84 Dinstein, supra note, at 124. 85 Michael Bothe, Karl J. Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts, 1982, p.295

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Discounting the value of involuntary shields does not violate Article 51.8’s proviso

that a violation of the norms safeguarding civilians does not release the other side from

obedience thereto. Advocates of this third approach zealously maintain that the involuntary

shields qualify as civilians (vice direct participants or unlawful combatants) and that the

principle of proportionality applies to the attack. They merely suggest how to apply the

principle.

In a sense, the military necessity-humanitarian considerations balance underpinning

IHL has been adjusted. For that reason, the approach cannot be dismissed as merely lex

ferenda. Further, and as noted, treaties must be interpreted in light of their objective and

purpose and international law generally should be interpreted mindful of the context in

which it applies.

Yet, formal interpretive nuances aside, how does one apply the approach in practice?

In other words, how can it be operationalized? Assessing proportionality is already one of the

most complex and difficult decisions made by warfighters, one that eludes easy

quantification. Suggesting that some civilians are less valued than others renders an elusive

determination only more so.

Perhaps a slightly modified approach might prove useful. Involuntary shields would

count fully as civilians in the proportionality analysis. However, as is very frequently the

case, the proportionality of a strike may be unclear. By this modified version of approach

three, an attacker facing such uncertainty would be entitled to conclude the strike would be

proportionate, i.e., that the injury to civilians would not be excessive. It is important to point

out that the “presumption” would not apply in the event the attack is expected to be clearly

proportionate or disproportionate. Such an approach preserves the rule of proportionality in

its entirety, while rebalancing the disequilibrium in the military necessity-humanitarian

considerations dichotomy caused by human shielding. It is a methodology for resolving

uncertainty, not a devaluation of civilians, or the protections to which they are entitled.

An obvious practical problem with this approach lies in determining when it applies,

i.e., distinguishing instances in which the enemy is intentionally exploiting the presence of

civilians to its advantage (shielding) from those in which civilians are only coincidentally

present. Many times, it is a simple matter to determine whether the civilians are being used

as shields. For instance, during the Gulf War of 1990-91, Iraqi security forces seized

foreigners, including children, and held them as shields. Or during the hostilities in Bosnia in

1995, the Serbs used captured and handcuffed UN peacekeepers as shields against NATO air

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attacks.86 More recently, it has become commonplace for Iraqi insurgents in vehicles to pull

up close to civilian vehicles whenever they spot US helicopters.

Yet, the intent to use shields is often not demonstrable. In such cases, a presumption

against discounting (or the modified version thereof) value in the proportionality calculation

should attach. That is, absent evidence from which a reasonable warfighter in same or similar

circumstances would conclude the civilians were being employed as shields, they are to be

treated as ordinary civilians who find themselves at risk due to hostilities. Article 50.1 of AP

I, which imposes a presumption in favour of civilian status (vice combatant) in “case of

doubt,” imposes an analogous presumption vis-à-vis status.

Discerning readers may protest that the modified discounted value approach runs

counter to the presumption of civilian status in that it devalues civilians. Technically, it does

not. A presumption of civilian status in cases of doubt as to whether an individual is a

civilian or combatant still attaches. Nor does the approach assign lesser value to some

civilians than others.

In fairness, though, there is arguably a diminishment in de facto protection for civilians;

after all, attackers are entitled to resolve uncertainty as to proportionality in favour of an

attack being proportionate…thereby placing the shields at risk. But what must be

remembered is that IHL offers no mechanism for resolving doubt of this nature, as it does in

the case of civilian status. In the absence of an express presumption, applicative

interpretation must factor in the military necessity-humanitarian considerations dynamic.

Thus far, analysis of the attacker’s obligations when facing human shielding has

distinguished between voluntary and involuntary shields. In many cases it is a simple matter

to distinguish between the two situations. Situations involving civilians who have responded

to a leader’s public call to shield or shielding that has been preannounced by, for instance,

peace activists are illustrative. However, many times the situation will prove ambiguous.

Of course, if one adopts the approaches to involuntary and voluntary shields that call

for full civilian protections, the distinction makes no difference. The same is true if one

applies the discounted value approach to both types of shields. However, embracing either

the voluntary shield as a direct participant or the discounted value approach only as to

voluntary shields would necessitate a means of distinguishing the two categories.

As noted, API, Article 50.1, imposes a presumption in favour of civilian, and against

combatant, status. Since neither combatants nor civilians who directly participate in

hostilities, enjoy immunity from attack, in cases of doubt it is reasonable to analogously apply 86 UNSCR 998 (1995).

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a similar presumption against characterizing a civilian as a voluntary shield who is directly

participating. Further, since a status distinction is involved (rather than a methodology for

resolving doubt in the proportionality calculation), a similar presumption of involuntariness

should attach when those who would apply the discounted value mechanism only to

voluntary shields encounter doubt as to the intent of the shields. In such cases, the

appropriate IHL standard is whether a reasonable warfighter in same or similar circumstances

would hesitate to act based on the degree of doubt he or she harboured.

As to resolving doubt, recall that AP I, Art. 57.2a(1), requires an attacker to do

“everything feasible” to verify that the objective to be attacked is not a civilian. Since the reason

this is done is to ensure the individuals concerned receive the full protection to which they are

entitled under IHL, it makes sense that those who would distinguish an attacker’s treatment

of involuntary and voluntary shields should shoulder a similar obligation to discern whether

the shields are acting voluntarily or not.

Closing Remarks

Clearly, the normative regime pertaining to human shields is characterized by

discordance.

Do voluntary and involuntary shields merit different treatment in proportionality

calculations and precautions in attack requirements?

If so, are voluntary shields direct participants in hostilities?

Does it matter how they are shielding (physically shielding as distinguished from

affecting the proportionality assessment or causing moral pause)?

Do voluntary or involuntary shields (or both) “count” differently in the

proportionality analysis?

If so, how can the approach be operationalized?

What are the standards for resolving doubt as to Status as a voluntary or involuntary

shield; and Status as an involuntary shield or merely someone caught up in the hostilities?

Such quandaries have moved from the ivory tower onto the battlefield itself. For

many reasons, especially the prevalence of asymmetrical warfare in 21st century conflict, the

resort to use of human shields has become a tragically commonplace tactic. It is essential that

the IHL community address the issue promptly and in an organized fashion; failure to do so

will only leave civilians at risk and military forces without the definitive guidance they

deserve.

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The Principle of the Prohibition of Superfluous Injury or Unnecessary Suffering

Théo BOUTROUCHE

Faculty of Law, University of Geneva

I would first like to thank very sincerely the organizers of this Round Table for having

invited me and for giving me the opportunity to speak today before such a distinguished

audience. It is a great opportunity for me to be able to talk about the principle of the

prohibition of superfluous injury or unnecessary suffering (“l’interdiction des maux superflus”

in French). But given the time constraints, it is a difficult challenge as well to grasp a

prohibition that was once qualified by Antonio Cassese as “one of the most unclear and

controversial rules of warfare”.

Introductory remarks on the principle of the prohibition of superfluous injury or unnecessary

suffering in International Humanitarian Law (IHL)

The prohibition of superfluous injury or unnecessary suffering is at the heart of The

Hague Law regulating the conduct of hostilities and is a well-established principle both in

treaty law and in customary law. It also applies in non international armed conflicts. When

discussing the principles of IHL, this prohibition is often referred to in parallel with the

principle of distinction. The International Court of Justice (ICJ) qualified the two principles as

“intransgressible principles of international customary law” or as “cardinal principles … constituting

the fabric of humanitarian law”. Paradoxically, its definition and content have always been

controversial and remain partly unsettled.

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The wording of this principle encapsulates one of the core pillars of IHL - the principle

of military necessity as a limitation to military action, i.e. avoiding what is not necessary.

Consequently, the prohibition of ‘unnecessary suffering’ is sometimes used as a concept

explaining every rule of IHL or as a rule protecting directly the civilians. However, as a legal

principle, the prohibition of superfluous injury or unnecessary suffering refers mainly to the

effects of a weapon on combatants.

Indeed the rationale behind the protection of combatants is different from the one on

which the protection of civilians is founded. Whereas civilians cannot be targeted, combatants

are legitimate military targets that can be lawfully killed under IHL. This is a critical element

to bear in mind when trying to define this principle. On the other hand, the recognition of

limits to the lawful infliction of death, injury or suffering against legitimate targets illustrates

ultimately the humanitarian and moral essence of IHL, as underlined by Hugo Slim in his

presentation: Protecting and valuing the human person, irrespective of the military threat posed by

the combatant.

As far as one can clearly trace back its origins, the first formulation of what is meant by

unnecessary suffering appears in the context of the prohibition of a specific weapon: the St

Petersburg Declaration on Explosive Projectiles Under 400 Grammes Weight. The Hague

Conferences of 1899 and 1907 constitute a turning point by codifying for the first time the

principle and shaping more precisely the normative framework to regulate weapons. There

are two complementary approaches, one based on general principles prohibiting certain

effects, and one based on specific limitations or bans of particular weapons. Art. 23 e) of the

1907 The Hague Regulations concerning the Laws and Customs of War on Land exemplified

this architecture. Finally, Article 35 (2) of Additional Protocol I provided for the most

elaborated formulation of this principle. Whereas it was developed as only applicable to

means of warfare (weapons), Article 35 (2) extended its application to methods of warfare (the

way weapons are used). The ICRC Customary Law Study concluded that the actual

customary norm covers both means and methods of warfare. State practice regarding the

exact scope of this extension and the type of methods that could be banned on the basis on the

general prohibition still remain unclear though.

This contribution will focus on the issue of the definition and content of the principle

with regard mainly to means of warfare. It will first build upon the commonly accepted core

definition of this principle that imposes a balance between the effects of a weapon and its

military advantage or utility. Secondly, it will seek to go beyond this mere formulation to

elaborate a more precise definition. I will proceed by using examples of particular weapons.

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Finally, I will conclude by briefly stressing the role this principle can play to face

contemporary challenges.

The commonly accepted definition of means of warfare that cause superfluous injury or

unnecessary suffering

As one criterion to assess the legality of weapons, the prohibition of superfluous injury

or unnecessary suffering calls for a workable test to conclude whether or not the law is

violated with regard to a particular weapon. At first sight State practice appears too

fragmented to come up with a commonly agreed test. The terms of the rule seem really

complicated to reconcile through a legal definition. Especially if one considers the close link

between this prohibition and the notion of excessive cruelty. It implies a subjective evaluation

of the effects of a weapon as well as the difficult task of weighing those effects with its

military utility. However, this is not the only rule of IHL to be facing this kind of challenge.

As shown earlier during this Round Table, the principle of proportionality also proves to be

difficult to apply in the context of the definition of indiscriminate attacks. Finally, the

prohibition of unnecessary suffering calls for the use of standards pertaining to different

disciplines such as medicine or ballistics, outside the legal sphere.

Concretely, how to determine what injury and suffering are superfluous or

unnecessary? The words superfluous and unnecessary imply a relationship: unnecessary or

necessary vis-à-vis a particular benchmark. There have been two main ways of interpreting the

standard of reference to evaluate this necessity:

The first one, sometimes called the ‘humanitarian’ or ‘medical’ interpretation, is

founded on the nature and/or the quantity of the effects of the weapon. It would imply the

existence of a threshold beyond which any weapon, whatever its military utility, causes

unnecessary effects. Sometimes this threshold is defined with reference to the injury or

suffering inflicted on a person to put them hors de combat. The SIrUS Project initiated by the

ICRC was partly based on this approach despite a slightly different method. The focus was on

describing the effects of commonly used conventional weapons with a view to gathering data.

After having identified a series of main effects of conventional weapons, such as the mortality

rate, the authors of the Project used the findings to conclude that weapons that were

producing effects above one of those effects were to be considered as causing superfluous

injury or unnecessary suffering. It was criticized for not taking into account the other key

element of the test, the military side.

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The second interpretation lies in a comparison between the effects of the weapon and

its military utility. It is the definition recognized by State practice. Although it seems to run

against the humanitarian spirit of the rule by using the military purpose of a weapon as the

yardstick, integrating military considerations within legal rules is the very nature of IHL.

However, striking a balance between those two elements as a test to define superfluous injury

and unnecessary suffering appears to bring more questions than answers.

Defining the effects to be taken into account: what are the suffering and the injury?

This prohibition focuses on the nature and/or the quantity of the effects of a weapon.

It is a very difficult issue to grasp in terms of definition. Thus the difference with the

protection of civilians should be stressed. Civilians are protected from any type of harmful

effect. Sometimes confusion may occur. During the debate over the legality of anti-personnel

landmines, reference has been made to the nature of the injury caused by landmines, mainly

amputation, when discussing the effects on civilians.

The prohibition of superfluous injury or unnecessary suffering leads to an apparent

incongruity in IHL: while it would be lawful to kill a combatant, it is unlawful to inflict a

certain type of injury or suffering? There is a crucial distinction to make in order to solve this

contradiction. Death as a result of the use of a particular weapon can be a possibility but there

is no certainty about this effect. On the other hand, specific injury or even death can be a

systematic effect of a weapon, flowing from its nature, whichever way the arm is used. A

bullet of a rifle may kill whereas poison will render death inevitable. The debate over the

legality of anti-personnel blinding laser weapons has been partly flawed by disregarding such

distinction.

Two main issues will be briefly addressed with regard to the definition of suffering

and injury.

The first one relates to the effects themselves. The words injury and/or suffering as

codified in Article 35 (2) are at the heart of one of the most famous language debates in IHL.

The St. Petersburg Declaration used the word ‘suffering’ which remained in the 1907 Hague

Regulations despite its drawbacks to serve as a benchmark. The French words ‘maux superflus’

were already used in The Hague Regulation allowing for a wider notion including injury. The

corresponding English translation makes use of both terms - injury and suffering – as the

closest equivalent for “maux”. Further, the development of knowledge of the effects of

weapons helped to shape the type of suffering to consider. State practice now recognizes both

physical and psychological suffering as relevant effects. The question of death as an effect of

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weapons is a complex one in the context of superfluous injury or unnecessary suffering. The

St. Petersburg Declaration Preamble prohibited two effects: ‘aggravating suffering’ and

rendering death inevitable. The reference to the latter disappeared in subsequent IHL

instruments. Some argued that it was not necessary anymore considering the fact that the

prohibition of poison was codified. The two propositions are, however, not synonymous. The

core issue is whether or not the prohibition of weapons rendering death inevitable is separate

from the rule prohibiting superfluous injury or unnecessary suffering. This has been a point of

contention in the case on the legality of nuclear weapons before the ICJ. State practice shows

that it is more an effect that falls under the general prohibition of superfluous injury or

unnecessary suffering rather than an autonomous rule.

The second issue is the causation link as a requirement between the relevant effects

and the weapon. It refers to another difference of translation: the English expression

‘calculated to cause’ was used in the 1907 Hague Regulations and is still used in certain State

declarations. This expression could restrict the scope of the prohibition as it implies that the

weapon needs to be designed, intended, to cause such effects. The broader and more objective

link based on the expression weapons ‘of a nature to cause’ seems to be commonly accepted

by States. The question remains to determine what the ‘nature’ of a weapon means. Specific

regulations on weapons, such as the 1980 Protocol I on non detectable fragments, used the

criterion of the “primary effect”. This would make the legal review dependent on

technological aspects and could lead to odd legal niceties (another example is the debate of

the qualification of white phosphorus as a chemical weapon under the 1993 Convention). But

it is very important to be aware of those aspects to understand some controversies such as the

debate over the legality of high velocity projectiles which may or may not have the same

effects as dum dum bullets. Some States define the “nature” by reference to the normal and

foreseeable use of the weapon (Belgium). This raises the question of the type of tests used to

identify weapons effects. This issue of the effects is closely related to the other term of the

equation, the military utility of the weapon.

The content of the ‘military utility’ of a weapon

As terrible as the effects of a weapon may be (even with mere conventional weapons

injuring by mechanism of blast and/or fragmentation), they need to be compared to the

military utility of the weapon in order to assess their lawfulness. Such a test seems to be

opening a Pandora’s box. The greater the military utility of a weapon, the easier it would

seem to justify the injury and the suffering. This element of relativity is even more

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troublesome when considering the various expressions used to describe the military side of

the test in State practice: “military utility”, “military advantage”, “military objective”,

“military necessity”. As far as the prohibition of superfluous injury or unnecessary suffering

is concerned, there are still limits in the interpretation of “military necessity”.

The main limit is the necessary link between the military advantage and the use of the

weapon itself. In this context, military necessity is not a broad concept that would change for

each and every circumstance of use of the weapon. Further, it cannot serve as a justification to

violate the prohibition of unnecessary suffering. However, the military purpose of a weapon

is a complex notion to grasp. In that context the distinction between anti-personnel and anti-

material weapons plays an important role in framing its interpretation and clarifying its

content.

For anti-personnel weapons the easiest case is the example of bullets used against

combatants. From the St. Petersburg Declaration onwards, the legal benchmark has been to

assess what is necessary to ‘disable’ a soldier or put him ‘hors de combat’. Additional Protocol I

defines the terms ‘hors de combat’ (Art. 41 §2 c): “a person is hors de combat if he has been

rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of

defending himself”. Explosive bullets under 400 grammes in 1868 or expanding bullets in 1899

have been deemed to cause more harm than necessary to achieve this ‘individual’ goal. The

specious argument based on a distinction between civilized soldiers and savages to justify the

use of dum dum bullets against the latter was dismissed in 1899.

The situation is more complicated when one changes the scale or the context. First of

all, when considering troops instead of individual soldiers, weapons can have an anti-

personnel purpose but cause greater harm than necessary to put one soldier hors de combat.

Second, the evolution of the military utility of a weapon may change the result of the

equation. When explosive bullets of less than 400 grammes turned out to be very efficient

against aircraft, they became anti material weapons. Their effect could not be solely assessed

under the criterion of putting someone hors de combat. State practice restricted the scope of the

rule to anti-personnel use (See ICRC Customary Law study, rule 78). Finally, one may refer to

the issue of high velocity projectiles: even if it were proven that they have the same effect as

expanding bullets, the failure to ban them might be due to a more complex military utility

than when 1899 The Hague Declaration was discussed.

Anti-material weapons can cause terrible anti-personnel effects but they are secondary

compared to the military purpose of the weapon: for example, the destruction of a tank. When

weighed against the military element, those anti-personnel effects are justified.

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Given the complexity and various elements of what the military utility of a weapon is,

it is hardly surprising that most of the treaties prohibiting or limiting the use of specific means

of warfare cover anti-personnel weapons with an individual purpose. It is the easiest case to

reach a consensus on the application of the test balancing both elements.

The test to be applied: is it merely an issue of disproportion?

The general formulation of the prohibition that imposes to strike a balance between

humanitarian effects of a weapon and its military utility leaves open the question of the

nature of the relationship between the two elements. In other words it is the question of the

proper test to assess the lawfulness of a weapon.

Some have stressed that superfluous injury and unnecessary suffering should be

determined by State practice or by reference to specific weapons that are already considered

to cause such effects. This would mean that there is no specific legal test to be applied. A close

look at State practice shows that these are only factors among others that States take into

account to implement this prohibition.

The superfluous or unnecessary character of an injury or a suffering calls for a

comparison that States identify either as an absence of necessity (see the Military Manual of

Canada) or as an issue of proportionality (see the New British Military Manual). Beyond the

theoretical debate on the distinction between those two concepts, the question lies in its

concrete application: does it mean that for the purpose of weighing the two elements of the

prohibition, two tests are required?

The issue of necessity is often assimilated to the question of the availability of other

weapons to achieve the same goal. This is definitely an element to take into consideration to

assess the unnecessary nature of an effect. Some legal implications are interesting to stress.

For example Rule 85 in the ICRC Customary Law Study is partly based on State practice

referring to the prohibition of superfluous injury or unnecessary suffering. This rule prohibits

the anti-personnel use of incendiary weapons unless it is not feasible to use a less harmful

weapon to render a person hors de combat. The same holds for the debate over the use of white

phosphorus in Falludja in Iraq where it has been argued that there was no other way to get

the Iraqi insurgents out of the trenches. On the other hand, the test to determine what injury

or suffering are superfluous cannot be reduced to the question of available alternative

weapons. It would mean that whatever injury is caused, even clearly disproportionate, it

could be justified by the fact that there is no other weapon.

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An interesting way of looking at the necessity/proportionality issue is to make a

parallel with others branches of international law. Under jus ad bellum, for example, the

conditions for an action in self-defence to be lawful implies first to verify whether the use of

force per se was necessary and then to assess the proportionality of the type of measures that

have been adopted. This would then be a test at two levels. State practice shows examples of

this articulation in the context of the prohibition. Suffering or injury having no military

purpose will be unlawful. When there is a military purpose, it is necessary to apply a test of

proportionality. It is, however, difficult to conclude that those two tests are always

distinguished. What is beyond doubt is that when applying the proportionality review, the

effects of the weapon need to be clearly excessive to be qualified as unlawful.

Concluding remarks on the contemporary role of the prohibition

First of all, although State practice seems to be fragmented, it is possible to come up

with an elaborate definition of superfluous injury and unnecessary suffering. There are

obviously issues of application to specific weapons when the results of the equation are in

dispute. There could be a need for interpretative guidance similar to the one initiated for the

notion of direct participation in hostilities.

Second, the prohibition of superfluous injury or unnecessary suffering remains an

essential legal yardstick to discuss the legality of means and methods of warfare as a

translation into law of moral ban of cruel weapons.

Finally, the contemporary role of the prohibition of superfluous injury or unnecessary

suffering is not restricted to the international forum of diplomatic conferences. It serves as

legal criterion to review the legality of weapons at the State level, particularly under Article 36

of the Additional Protocol I. But this prohibition also has a critical role to play at a more

operational level. Not only does it restrict, for the high rank military planners or decision

makers, the ways or methods in which weapons can be used in order not to cause the

prohibited effects, but it also plays a role for the soldier him/herself, on the battlefield, as it

bans the modification of weapons for the purpose of increasing or causing suffering beyond

that required by military necessity.

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Mines, Cluster Bombs, Explosive Remnants of War (ERW)

Knut DÖRMANN, Head of the Legal Division, ICRC

The issues being addressed in this group reflect an area of international law which has

developed perhaps more rapidly than any other in the past ten to twelve years. This area of

International Humanitarian Law (IHL) covers weapons which go on killing, injuring and

impacting societies long after the weapons have ceased to fulfil any military purpose.

My introduction will include a short appraisal of the current state of implementation

of the Convention on the Prohibition of Anti-Personnel Mines and will make the case for new

rules on cluster munitions. As many of you know some seventy States have committed

themselves to concluding a treaty in 2008 which will prohibit those cluster munitions deemed

to cause unacceptable harm to civilians, and States Parties to the Convention on Certain

Conventional Weapons will decide in November if and how to address this issue within that

framework.

Anti-personnel landmines

This year marks the 10th anniversary of the adoption of the Convention on the

Prohibition of Anti-Personnel Mines, the Ottawa Convention. It counts today 155 States

Parties. This instrument provides a comprehensive framework through its prohibition on all

use of anti-personnel mines, its clearance and stockpile commitments and provisions for

victim assistance. In this respect, it is a unique instrument which for the first time bans a

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weapon in widespread use and requires States to take measures for the care, rehabilitation

and reintegration of the victims of that weapon.

Implementation in the past ten years of the Ottawa Convention has been an important

success. First, there has been a major decrease in the use of anti-personnel mines (AP mines)

around the globe and even if 40 countries stay outside of the Ottawa Convention, evidence is

that the use of this weapon has been truly stigmatized. Secondly, there has been a significant

decrease in the production of AP mines and the international trade has virtually ceased, with

even many non-States Parties having export moratoria in place (including China, India,

Pakistan, Russia and the USA). Thirdly, over 39 million AP mines have been destroyed by

States Parties. Perhaps, the most significant achievement of the Ottawa Convention is its

success in reducing death and injury on the ground. The ICRC and our National Societies

have observed that, where the Convention's norms are being fully applied, the annual number

of new mine victims has fallen dramatically and in some cases by more than 60%. (e.g. Yemen,

Cambodia, Bosnia-Herzegovina).

A number of major challenges remain. One of the most important is the fulfilment of

mine clearance obligations87, which requires States Parties to completely clear all areas

containing AP mines under their jurisdiction or control within 10 years after the entry into

force of the Convention for that States Party. More than half of the States Parties that have a

deadline in 2009 or 2010 (i.e. 14 out of 27 States Parties) have indicated that they will definitely

or probably have to ask for an extension of their clearance deadlines. It is most worrying that

some of these States have not yet identified the full extent of mined areas in their country.

Although extensions are permitted, it is crucial for the credibility of the Convention that mine

affected States, and States Parties in a position to assist them, make meaningful efforts to

achieve mine clearance within their Convention deadlines, so as to minimise the number of

extensions needed.

Other ongoing challenges include the fulfilment by States Parties of the requirement to

provide adequate medical and physical rehabilitation assistance to mine victims and the

adherence by States which still remain outside the Convention's norms. In this regard it is

particularly encouraging that this year's Meeting of States Parties is being held for the first

time in the Middle East, at the Dead Sea in Jordan, and that the most recent ratifications have

come from Kuwait and Iraq.

Cluster Munitions 87 Article 5 of the Convention.

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The problems associated with cluster munitions are not new. The use of these weapons

in conflicts over the last 40 years has shown that a large proportion of these weapons have

problems of accuracy and reliability. The impact of unexploded submunitions on civilians can

be seen in places such as Laos, Afghanistan, Ethiopia, Serbia, Iraq and most recently Lebanon.

While mainly used by military forces, reports also indicate that armed non-State actors have

begun to have access to these weapons – raising concerns about the implications of their

proliferation and highlighting the increasing costs of inaction.

The concerns arise from the impact that cluster munitions have on civilian

populations. Cluster munitions have long term and deadly consequences for civilians both

after conflicts when their submunitions fail to explode as intended and become explosive

remnants of war and during conflicts when they function as designed. Failure rates are often

between 15 and 40 percent of all munitions used. Since cluster munitions spread enormous

numbers of explosive submunitions over very large areas, accuracy is often highly dependent

on wind, weather conditions and reliability of complex delivery systems, there is a serious

risk of civilian casualties where military objectives and civilians are co-located in a target area.

The last forty years provide clear evidence of the impact of these weapons on civilian

populations and war affected countries. Few conventional weapons have such characteristics.

No IHL treaty currently has specific rules for cluster munitions. Like other weapons

used in armed conflict, however, their use is regulated by the general rules of IHL that govern

the conduct of hostilities. The history and effects of cluster munition use in recent decades

raises important questions about whether the general rules are sufficiently specific and about

how rigorously fundamental rules of IHL are being applied to cluster munitions and, in our

view, demonstrates the need for new rules.

Firstly, there are questions as to whether cluster munitions can be used in populated

areas in accordance with the rule of distinction and the prohibition of indiscriminate attacks.

These rules are intended to ensure that attacks are directed at specific military objectives and

are not of a nature to strike military objects and civilians or civilian objects without

distinction.

The fact that most cluster munitions are designed to disperse large numbers of

submunitions (up to 650 in some models) over very wide areas and that the vast majority of

submunitions are free-falling raise serious questions as to whether such weapons can be used

in populated areas in accordance with these rules. The wide area effects of these weapons and

the large number of unguided submunitions released would appear to make it difficult, if not

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impossible, to distinguish between military objectives and civilians in a populated target area.

Can these submunitions be aimed at a specific military target?

Secondly, there are also concerns arising under the rule of proportionality. It is clear

that implementing this rule must include an evaluation of the foreseeable incidental

consequences for civilians during the attack (immediate death and injury) and consideration

of the foreseeable effects of submunitions that become explosive remnants of war (ERW).88

The principal issue in this regard is what is foreseeable? Is it credible to argue today

that the short, mid or long-term consequences of cluster munition contamination are

unforeseeable, particularly when these weapons are used in or near populated areas? As is

known from past conflicts, civilians present in a target area will predictably need to gather

food and water, seek medical care and conduct other daily activities which put them at risk

from unexploded submunitions. And it is foreseeable that clearance will take months or years,

even in the rare cases when adequate resources are available.

Thirdly, there is the rule on feasible precautions, i.e. feasible precautions in the choice

of means and methods of attack with a view to avoiding, and in any event to minimizing,

incidental loss or civilian life, injury to civilians and damage to civilian objects. The main issue

here is how the rule on feasible precautions in attack is implemented in light of the known

characteristics and foreseeable effects of cluster munitions. Implementing the rule would

require, for example, that a party consider the accuracy or inaccuracy of the cluster munition

and its targeting system, the size of the dispersal pattern, the amount of ERW likely to occur,

the presence of civilians and their proximity to military objectives, and the use of alternative

munitions and tactics. It could also require that submunitions must not be used in populated

areas and that alternative weapons are considered. Yet, given this range of precautions which

can and should be taken, why do high levels of civilian casualties from cluster munitions

remain an ongoing and predictable feature of virtually all conflicts in which they are used?

Such a consistent history of high human costs may raise questions on the extent to which the

various aspects of this rule are being applied in relation to cluster munitions.

An important step to reduce the post-conflict impact of cluster submunitions and other

explosive remnants of war was taken in 2003 when the Protocol on Explosive Remnants of

War was adopted. The Protocol provides an important framework for reducing the post-

conflict dangers caused by all forms of unexploded or abandoned ordnance.

88 See also Final Declaration of the Third CCW Review Conference, CCW/CONF.III/11 (Part II): "Noting the foreseeable effects of explosive remnants of war on civilian populations as a factor to be considered in applying the international humanitarian law rules on proportionality in attack and precautions in attack".

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However, the Protocol does not contain legally-binding measures to prevent the

steady increase in the global burden of explosive remnants of war. The scale of the problem is

growing far more rapidly than clearance operations can remedy it. One of the greatest

contributors to this burden, when they are used, is cluster munitions. The Protocol also does

not address the high risk of indiscriminate effects from a cluster munitions attack when the

submunitions do detonate as intended, particularly if the attack is in a populated area.

The ICRC believes that the specific characteristics of cluster munitions, the unfortunate

history of their use and their severe and long-lasting costs to victims, communities and even

whole societies fully justify strong action at both the national and international levels. In light

of the specific characteristics of these weapons and their history of death, injury and suffering,

the ICRC supports and calls for the development of a new IHL treaty which would (1)

prohibit the use and transfer of inaccurate and unreliable cluster munitions, (2) require the

elimination of current stocks of these weapons and (3) provide for victim assistance, clearance

of cluster munitions and activities to minimize the impact of these weapons on civilian

populations.

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Weapons causing post-conflict Effects on Civilians

Ronald BETTAUER

Deputy Legal Adviser, U.S. Department of State

I am pleased to be here today. My intention is to start a discussion among those in the

room, not merely to make a few comments and take questions.

I would like to address briefly: (1) Protocol V to the Convention on Certain

Conventional Weapons (“CCW”), on explosive remnants of war (“ERW”); (2) anti-vehicle

mines (“AVM” or “MOTAPM”); and (3) cluster munitions.

As you likely know, the U.S. Government’s position on issues addressed by Knut

Dörmann is different than the positions he set out. I will try to point out where this is so to

the extent time permits.

Before starting, let me make clear that we do not share the views expressed by Knut on

anti-personnel mines. For the United States, the relevant instrument is the Amended Mine

Protocol (“APII”) of the CCW (requirements concerning (1) the detectability of such mines

and equipping such mines with effective self-destruction or self-neutralization mechanisms

and back-up self-deactivation features; (2) recording information on minefields; and (3) the

removal of such mines, among other provisions). Protocol V deals with ERW other than that

already covered by APII.

Protocol V

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First, let me address how Protocol V addresses the ERW problem.

The period immediately following the conflict is when civilians are most likely to

interact with ERW. Rapid and effective implementation of Protocol V’s provisions will

provide substantial protection to the civilian population. Protocol V requires that each Party

mark and clear, remove, or destroy ERW in affected territories under its control. The Party

that used the munitions which have become ERW on territory it does not control is obligated

to assist “to the extent feasible.” Users of munitions are obligated to record and retain

information on use / abandonment of munitions “to the extent feasible and as far as practicable.”

They are also to transmit such information to the Party in control of the territory. The Parties

to an armed conflict are obligated to take steps, to the extent feasible, in the territory under

their control, to protect civilians and civilian objects, as well as humanitarian missions and

organizations, from ERW. In addition, Protocol V contains provisions on cooperation and

assistance as well as non-binding guidelines on a variety of topics, including recording and

release of information on ERWs, risk education in affected areas, and measures to increase the

reliability / functioning rate of munitions.

The First Conference of Parties on Protocol V will consider guidelines and informal

mechanisms aimed at facilitating rapid and effective implementation of these provisions,

including: (1) the establishment of a database on ERW incorporating information from

national reports and subsequent updates on locations of ERW, status of clearance efforts and

measures taken to provide warning; (2) measures for recording, retaining, and transmitting

information called for under the Protocol; and (3) an informal mechanism for consultations to

connect countries needing assistance with ERW with countries able to provide that assistance.

Although not yet a State Party to Protocol V, I note that the United States is committed

to reducing the humanitarian impact of ERW and looks forward to these discussions. The

United States has provided more than $1 billion in assistance to 52 countries since 1993 for

clearance of ERW, more than any other country or international organization.

Anti-Vehicle Mines

I now turn briefly to AVM, also an important area.

There was intensive work from 2002 to 2006 to develop a protocol on anti-vehicle landmines.

Non-detectable, long-lived anti-vehicle mines can pose threats to civilians and civilian

vehicles long after a conflict is over. The irresponsible use of such anti-vehicle mines

poses a serious humanitarian problem that is not adequately addressed by

existing instruments. Although the number of civilian casualties associated with

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anti-vehicle mines is less than those associated with anti-personnel mines, there

are major humanitarian effects in terms of denial of assistance and post-conflict

reconstruction.

In 2005 and 2006 there was near unanimous agreement on a text, but a few States blocked

consensus last November at the Third CCW Review Conference. In the face of that, we and

24 other countries stated our intention to follow the policies set out in a Declaration on Anti-

Vehicle Mines. The declaration is in Document WP.16 and can be found on the Geneva UN

CCW website89, and the agreed steps to be taken as a matter of policy are as follows:

• Not to use any anti-vehicle mine outside of a perimeter-marked area if that

mine is not detectable.

• Not to use any anti-vehicle mine outside of a perimeter-marked area that does

not incorporate a self-destruction or self-neutralization mechanism.

• To prevent the transfer of any anti-vehicle mine unless the mine meets the

detectability and active life standards and unless the transfer is to a State that has also

adopted this policy.

The November 2007 meeting of CCW States Parties reserved up to 2 days to discuss AVM.

Speaking for the United States, if positions were to change and consensus appeared to be

possible, we would be prepared to return to this matter.

Cluster Munitions

Finally, let me turn to cluster munitions. The U.S. views on cluster munitions were set

forth in detail at the June CCW Group of Government Experts meeting; there is only time now

to make some brief comments

First, the United States considers cluster munitions to be legitimate weapons when

employed properly and in accordance with existing International Humanitarian Law. It is

wrong to say such munitions are inherently unreliable; militaries want weapons that function

as intended and will not be a hazard for civilians or themselves.

In certain situations, cluster munitions provide military capabilities that cannot be

provided by other weapons systems. Cluster munitions provide advantages against a range

of target-types. They allow commanders to attack multiple stationary or moving targets

within specific areas, either engaging the enemy over broad areas that they are occupying or

89http://www.unog.ch/80256EE600585943/(httpPages)/1DB747088014E6D7C12571C0003A0818?OpenDocument

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narrowly engaging specific targets. There are different types of cluster munitions for different

uses, and they are scalable to different target areas.

In many instances, cluster munitions result in much less collateral damage than

unitary weapons would if used for the same mission. If the use of cluster munitions was

restricted, certain missions would require our forces to fire many times more non-cluster

projectiles to achieve the objectives.

Cluster munitions are well suited to attack area targets when time is of the essence.

Because they can attack various types of targets quickly and simultaneously, they can also

reduce the exposure of our forces to enemy fire. Their absence from the arsenal would also

have serious logistics and cost implications. Cost and economy of force are certainly

legitimate military considerations

We believe that the law of war already covers cluster munitions both during and after

their use, and a study published under CCW auspices reached the same conclusion, noting

that strict compliance with existing rules is key.90 Unlike Knut, we believe these weapons can

be used in accordance with the law,

The key applicable rules of the law of war are those of proportionality and distinction.

The rule of proportionality requires that a military commander wishing to use cluster

munitions assess whether a particular attack may be expected to cause loss of civilian life,

injury to civilians, damage to civilian objects, or a combination thereof that would be

excessive in relation to the concrete and direct military advantage anticipated. Of course, a

commander needs to take into account what he knows about the reliability of the munitions

he uses. He also is entitled to anticipate that his adversary will comply with its obligations

concerning ERW, for example, those contained in Protocol V.

The rule of distinction requires that cluster munitions, like other weapons, only be

used against military objectives. A commander may use cluster munitions only if he judges,

in the particular circumstances, that the munition in question can be directed at a military

objective and will not strike military objectives, civilians, and civilian objects without

distinction. The presentations by our military experts at the June CCW meeting demonstrated

that cluster munitions can be used consistent with this requirement.

Protocol V to the CCW, which I have already discussed, addresses the issue of

unexploded cluster munitions primarily in the post-conflict stage. There is really no need to

duplicate the measures in Protocol V in a separate instrument on cluster munitions.

90 Timothy L.H. McCormack, Paramdeep B. Mtharu, and Sarah Finnin, Report on States Parties’ Responses to the Questionnaire, International Humanitarian Law & Explosive Remnants of War, March 2006, p.49

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I think Knut has painted a misleading picture of the humanitarian impact of cluster

munitions. The impacts are limited in scope, scale and duration as compared to other ERW.

There is no country – except one (Laos) – where cluster munitions constitutes the principal

ERW threat. And we are unaware of any unmet request for assistance in clearing cluster

munitions. By 2008, only Laos will have a need for assistance dedicated specifically to cluster

munitions. I don’t have time to go into the details that support these points, but you will find

them carefully set out in Richard Kidd’s remarks at the June CCW meeting.91

Despite this, due to the importance of the issue, concerns raised by other countries,

and our own concerns about the humanitarian implications of these weapons, the United

States has concluded that it makes sense to initiate negotiations on a new instrument on

cluster munitions within the framework of the CCW. We have taken no position as to the

outcome of the negotiations, but we do believe this issue is best addressed in the CCW

framework, which is most likely to achieve a result that balances humanitarian concerns with

military utility and is, therefore, likely to have a more substantial impact than a result that

fails to garner the support of many military powers. In June, Government experts

recommended that the November meeting of States Parties to the CCW decide how best to

address cluster munitions in the framework of the CCW.

91 http://www.ccwtreaty.com/press/0620CCWGGE.htm

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Discussion on Means and Methods of Warfare likely to

cause Superfluous Injury and Unnecessary Suffering

Erwin DAHINDEN,

Director of International Relations of the Swiss Armed Forces

Member of the IIHL Council

Interdiction of superfluous injury and unnecessary suffering is almost as old as

internationally codified humanitarian law. Equally, since its emergence, the concept is widely

discussed and it seems to be almost impossible to find consensus on its precise definition and

extent.

What are the reasons and how can this interdiction materialize in international

conventions regulating certain means and methods of warfare?

War will always cause unmeasured suffering, on combatants and on civilians affected

by it. How much of this suffering can be justified by military necessity, and what should be

considered as unnecessary or superfluous? In armed conflict, killing of combatants by

combatants is considered licit in principle and is thus widely accepted as an exception to the

general interdiction to destroy life. At the same time, the employment of certain weapons

systems which would not even kill had been considered unlawful by the international

community, because they caused injury which was not acceptable because of its inhuman

long-term consequences. As an example, we mention blinding laser weapons.

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While certain weapons undoubtedly have terrible effects on humans if they impact on

a human body (e.g. artillery shrapnel), they remain acceptable because of their high military

value. Suffering as sole criterion is therefore not enough, other factors play an important role

when trying to define which suffering is unnecessary.

First of all, we should take into account all the factors influencing the preparedness of

States to voluntarily limit their freedom of action to possess, transfer, produce or use certain

weapons systems.

Graph 1. Overview of the factors influencing the possibility to reach consensus of a weapons

regulation

As our viewgraph shows, humanitarian considerations are but one set of factors which

influences States’ decisions with regard to accepting new weapons law.

Limited military necessity, good chances for universal ratification, credibility and

feasibility of implementation are compelling arguments to bring hesitant States aboard. On

HumanitySuperfluousinjury and

unnecessarysuffering

Chance of universal

acceptance

Credibility / feasibility ofimplemen-

tation

Consensus for RegulationDistinction

Indiscriminateeffects

ProportionalityDisproportio-nate effects

Military necessityRelevancein combat

Adherence

HumanitySuperfluousinjury and

unnecessarysuffering

Chance of universal

acceptance

Credibility / feasibility ofimplemen-

tation

Consensus for RegulationDistinction

Indiscriminateeffects

ProportionalityDisproportio-nate effects

Military necessityRelevancein combat

Adherence

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the other hand, important military powers will be rather reluctant to sign up to a treaty which

will significantly limit their military capabilities, especially if other comparable powers still

abstain from doing so.

States, however, may come under pressure by the public opinion in cases where the

humanitarian costs of a weapons system are extremely high and where the military value may

be questioned. The best example of a successful public campaign is the ban of anti-personnel

mines which was achieved once humanitarian consequences were successfully linked with

convincing arguments showing the limited military value of the weapon in times of a

mechanized battlefield with rapidly moving mobile elements.

Many other weapons regulations emerged of a lengthy and difficult process, where at

the beginning just but a few States were motivated to go ahead. It is also a fact inherent to

regulations of means and methods of warfare, particularly of weapons, that rapid

technological change requires drafters of conventions focusing rather on general principles

which bring measurable results. It will be impossible to regulate each and any weapon, and

the day such an instrument would enter into force, the weapon it wanted to regulate would

already have changed.

From an international law point of view it is important to note that binding legal

instruments which are not ratified by important military powers will have a very limited

effect on the ground, particularly in potential armed conflicts. They may even have negative

effects on States inducing them not to ratify, because such treaties can not add to their own

security. Victims will not really benefit from such a situation. It is, therefore, an illusion to

believe in humanitarian progress achieved by drafting instruments which are likely not to

find broad acceptance. Law which does not find acceptance is worse than no law, because it

will create false expectations which will not stand the hard test of conflict reality. Such

constructs rather weaken the legal system.

Conclusions

Humanitarian concerns alone will not be sufficient to bring progress in weapons law.

They are by nature always balanced with concerns of military relevance of a weapons system.

This need for a correct balance is founded in the right to self-defence against armed attack.

States are - mostly by constitution - obliged to protect their own population against armed

attacks, and the UN Charter entitles them to do so. Weapons law must therefore respect the

need to be prepared for defence. On the other hand, sheer "paper solutions" of humanitarian

problems for the sake of achieving just any result in a diplomatic conference, which will never

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unfold practical results in the field, is detrimental to the humanitarian ideal. Paper solutions

rather provide arguments for States to stay away from such a regulation.

International efforts to ban or to restrict the use of certain weapons will have best

chances to become successful, and thus meaningful to victims of armed conflict, if the various

stakeholders - military, scientific, humanitarian and political - are able to find common

ground in a proposed solution. The ban on blinding laser weapons may be mentioned here: it

has shown that the regulation of a certain weapons system which is of particular use for non-

State actors or terrorist organizations can have good chances to bring concrete results, while

technically immature proposals such as the ban of depleted uranium are not likely to bring

progress in humanitarian terms. They may, unfortunately, through over-mediatisation

conceal real needs and divert international efforts from true issues.

Last but not least, timeliness of an initiative to regulate an issue can play an important

role. The flexibility of the military to become engaged in new regulations could be further

improved by better respecting the timeframes of armament procurement cycles. It will be

much more difficult to achieve consensus for restriction or technical adaptation of a weapons

system once it has been largely introduced and was purchased in important numbers, because

this would involve high costs. This may be a potential argument in the discussions around

cluster ammunition, which would be worth taking into account when considering improved

technical standards of those systems, before a great number of States have included them in

their arsenals.

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THE CONDUCT OF HOSTILITIES AND

SPECIAL PROTECTION REGIMES

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The Conduct of Hostilities and their Impact on Humanitarian Assistance

Arne DAHL

Judge Advocate General of the Norwegian Armed Forces

Ladies and Gentlemen,

Forty years ago, in 1967, I visited Leningrad, now St. Petersburg, as an eighteen year

old high-school student. We were taken to a place that made a lasting impression on me. This

was the Piskarevskaya cemetry which is a communal grave for 450.000 human beings who

starved to death during the 900 days siege of Leningrad from 8 September 1941 until 18

January 1944.

The siege of Leningrad was not a theme at Nuremberg, and the starvation of the

inhabitants was not considered a war crime. On the contrary, an American Military Tribunal

found in the High Command Case that an order issued by Field Marshal von Leeb to German

artillery to fire on Russian civilians attempting to flee through the German lines during this

siege, was not unlawful.92 I have not heard of any attempt to bring relief through the German

lines, apart from the supplies that the Russians could bring in themselves over lake Ladoga. If

efforts were made by the ICRC, neutral Sweden or anyone else, I assume that any request was

lawfully refused by the besiegers.

92 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, p. 134. He refers to High Command case (USA v. von Leeb et al.) (American Military Tribunal, Nuremberg, 1848), 11 NMT 462, 563.

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Let this be a background when we ask ourselves: have there been any developments in

international law since 1945, that could bring some hope to others, who might otherwise face

a similar fate as the inhabitants of Leningrad suffered between 1941 and 1944?

Different situations

In an analysis, we first of all have to distinguish between situations. We have sieges, as

that of Leningrad, being static situations affecting a limited area, which is a military objective

that may or may not contain civilians. We have naval blockades covering a coastline or a port,

which may resemble a siege and is likely to affect a large area and its civilian population. And

we have a third category of situations, which is deprivation of food as a more general

consequence of hostilities when peasants have not been able to harvest the crops for security

reasons, crops and cattle have been taken by warriors, nomads have been denied access to

pastures or wells by warring factions, all of them situations that do not necessarily entail siege

of a military objective or an effective blockade.

Different legal regimes

Secondly, we have to distinguish between different applicable legal regimes. What we

are discussing, is first and foremost a question of International Humanitarian Law. Starvation

of civilians and the duty to permit humanitarian relief has, however, also an International

Human Rights aspect, as well as International Criminal Law and ius ad bellum aspects.

Development of the Law

Leningrad was not the only city or area under siege or blockade during that war, and

the ICRC had abundant experience as basis for its initiative with regard to rules that could

meet such situations, when the Geneva Conventions of 1949 were to be negotiated.

It has never been doubted that starvation of soldiers defending a military objective,

such as a fortress, is a lawful method. The difficulties arise when civilians become victims.

The basic problem with food, as opposed to medical supplies, is that while medical

supplies are basically for the benefit of those who are disabled by wounds or sickness, food is

a necessity for the fighting soldier, rivalled in importance only by ammunition, fuel and

water. Allowing consignments of medical supplies to enemy soldiers, does not make a big

difference in the military situation, whereas consignments of foodstuffs to besieged enemy

soldiers, is likely to be of great help to them. If the blockading or besieging power is to be

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expected to permit such consignments, there has to be some way of ensuring that the

foodstuffs will go to the civilians, not to the combatants.

Geneva Convention IV

According to the Fourth Geneva Convention Art. 23, States are obligated to allow the

free passage of all consignments of medical and hospital stores and objects necessary for

religious worship intended only for civilians of another High Contracting Party, even if the

latter is its adversary. States shall likewise permit the free passage of all consignments of

essential foodstuffs, clothing and tonics intended for children under fifteen, expectant

mothers and maternity cases.

The obligation to allow free passage for such consignments is subject to the condition

that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the

enemy through the substitution of the above-mentioned consignments for goods which would

otherwise be provided or produced by the enemy or through the release of such material,

services or facilities as would otherwise be required for the production of such goods.

Pictet points out, quite logically, in his commentary that the Power allowing free

passage may make such permission conditional on the distribution to the persons benefited

thereby being made under the local supervision of the Protecting Powers. Provisions can also

be laid down regarding technical arrangements. The Power authorizing free passage is

entitled to check the consignments and arrange for their forwarding at prescribed times and

on prescribed routes.

Additional Protocol I

The rules are further developed in AP I Art. 70, where the obligation to allow free

passage applies to relief consignments to the civilian population in general, that is to say, not

only to children, expectant mothers and maternity cases. It is laid down that offers of such

relief shall not be regarded as interference in the armed conflict or as unfriendly acts.

However, priority shall be given to the persons who according to the Fourth Convention and

the Protocol shall be given preferential treatment or special protection, such as children,

expectant mothers, maternity cases and nursing mothers.

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Such consignments shall, according to Paragraph 2, be allowed and facilitated even if

such assistance is destined for the civilian population of the adverse Party.

The principles of control and supervision are codified in Paragraph 3 of Art. 70, where

it says that the Parties to the conflict and each High Contracting Party which allow the

passage of relief consignments, equipment and personnel in accordance with paragraph 2:

(a) shall have the right to prescribe the technical arrangements, including search,

under which such passage is permitted;

(b) may make such permission conditional on the distribution of this assistance being

made under the local supervision of a Protecting Power;

(c) shall, in no way whatsoever, divert relief consignments from the purpose for which

they are intended nor delay their forwarding, except in cases of urgent necessity in the

interest of the civilian population concerned.

Customary Law

The duty to allow and facilitate rapid and unimpeded passage of humanitarian relief

for civilians in need is today considered customary law.93

Relief personnel

In accordance with AP I Art. 71, relief personnel may form part of the assistance pro-

vided in any relief action, in particular for the transportation and distribution of relief

consignments. Such personnel shall be respected and protected. Each Party in receipt of relief

consignments shall, to the fullest extent practicable, assist the relief personnel referred to in

paragraph I in carrying out their relief mission. Only in case of imperative military necessity

may the activities of the relief personnel be limited or their movements temporarily restricted.

Relief personnel in their turn shall take account of the security requirements of the Party in

whose territory they are carrying out their duties. The mission of any of the personnel who do

not respect these conditions may be terminated.

ICRC

The Parties to the conflict shall grant to the International Committee of the Red Cross

all facilities within their power so as to enable it to carry out the humanitarian functions

assigned to it by the Conventions and this Protocol in order to ensure protection and

assistance to the victims of conflicts; the International Committee of the Red Cross may also 93 ICRC, Customary Law Study, Rule 55, 2005

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carry out any other humanitarian activities in favour of these victims, subject to the consent of

the Parties to the conflict concerned, in conformity with inter alia the basic principles of the

Red Cross.94 Equivalent assistance shall, as far as possible, also be granted to other

humanitarian organizations referred to in the Geneva Conventions and the First Additional

Protocol which are duly authorized by the respective Parties to the conflict and which

perform their humanitarian activities in accordance with the provisions of the Conventions

and this Protocol. (AP I Article 81).

Customary Law – relief personnel and objects

Respect for and protection of humanitarian relief personnel and objects used for

humanitarian relief operations is a duty under customary law.95 The same applies to the

freedom of movement of authorized humanitarian relief personnel essential to the exercise of

their functions.96

Internal armed conflict

As this audience is well aware, the development of International Law applicable to

non-international armed conflict has for various reasons lagged behind the Law of

International Armed Conflict. For many years, there were hardly any other rules than

Common Article 3 to the 1949 Geneva Conventions that applied.

In Article 18 of the 1977 Additional Protocol II some brief provisions are given

regarding relief organisations and relief operations. Relief societies located in the territory of

the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun)

organizations, may offer their services for the performance of their traditional functions in

relation to the victims of the armed conflict. The civilian population may, even on its own

initiative, offer to collect and care for the wounded, sick and shipwrecked. If the civilian

population is suffering undue hardship owing to a lack of the supplies essential for its

survival, such as foodstuffs and medical supplies, relief actions for the civilian population,

which are of an exclusively humanitarian and impartial nature and which are conducted

without any adverse distinction, shall be undertaken subject to the consent of the High

Contracting Party concerned.

94 humanity, impartiality, neutrality, independence, voluntary service, unity, universality. 95 ICRC, Customary Law Study, Rules 31 and 32, 2005 96 ICRC,Customary Law Study, Rule 56, 2005

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Customary Law – internal conflict

It is considered a duty under customary law to give such consent and to facilitate

rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial

in character and conducted without any adverse distinction, subject to their right of control, in

internal as well as international armed conflict.97

The 2006 Sanremo Manual on the Law of Non-International Armed Conflict gives the

following explanation: “humanitarian assistance consists of any material or service essential to the

health and safety of civilians and others who have ceased to take an active (direct) part in the hostilities.

Examples include food, water, medical supplies, shelter, and clothing. The need for humanitarian

assistance may arise from the effects of hostilities, other violence, natural or man-made disasters, or any

other cause.

Those in control of an area, which humanitarian assistance operation transit or occur, may set

technical conditions for such operations. They are entitled to verify that the assistance effort conforms to

the conditions and purpose of its delivery. Such steps should not unduly impede or delay the provision

of humanitarian assistance. Diverting humanitarian assistance to other purposes (particularly for

political, military, or criminal reasons) is forbidden unless the diversion is urgently necessary in the

interest of the persons who require it. Recipients may not be taking an active (direct part) in

hostilities.”98

Interpretation and practical implementation

The rules that have been discussed so far should be understood with the general

prohibition of using starvation of the civilian population as a method of warfare as a

background.99 The application seems fairly straightforward when you have a conflict covering

large tracts of land, maybe without fixed frontlines. But when the situation narrows down to a

siege-like situation, one will have to ask whether the protection of the civilians can be

absolute.

One practical solution could be that the civilians concerned must be allowed to leave

the area. If this is not practical because of the distances involved or other factors, one may

have to resort to a proportionality evaluation: are we talking about siege or blockade of areas

that serve mainly military purposes, which would be legal even though civilians were there,

and siege of areas that are of a predominantly civilian nature? It is when we have substantial

97 ICRC, Customary Law Study, Rule 55, 2005 98 San Remo Manual, explanation to Rule 5.1, 2006 99 1977 AP I Article 54 (1), 1977 AP II Article 14, ICRC, Customary Law Study, Rule 53, 2005

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numbers of civilians present, that the right to humanitarian assistance comes into the

foreground.

International Human Rights Law

It has been submitted that the right to adequate food, laid down in Article 25 of the

Universal Declaration of Human Rights and in Article 11 of the 1966 Covenant on Economic,

Social and Cultural Rights, is relevant for the conduct of hostilities.100 These provisions do not

allow for any derogation in case of war or other emergency. Does this mean that they apply

fully also in armed conflict, or will they share fate with the right to life as guaranteed in

Article 6 of the International Covenant on Civil and Political Rights? As we know, the

International Court of Justice observed in its 1996 advisory opinion on the legality of nuclear

weapons that in principle, the right not arbitrarily to be deprived of one's life applies also in

hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be

determined by the applicable lex specialis, namely, the law applicable in armed conflict which

is designed to regulate the conduct of hostilities.

The right to adequate food may, however, have an independent application with

regard to the scorched earth tactic. This is prohibited according to Art. 54 paragraph 2 of AP I

if in this manner objects which are indispensable to the survival of the civilian population are

removed, destroyed or rendered useless. There is, however, an opening in paragraph 5 for

derogation from the prohibition on one’s own national territory, where required by

imperative military necessity, even if the civilian population is exposed to starvation.

If one considers International Humanitarian Law (IHL), at least with regard to

International Armed Conflict, as rules regulating the treatment of your opponent, one could

say that paragraph 5 has nothing to do in Article 54 of the AP I. It goes without saying that

when there is no specific prohibition, such as the human shield rule, it is not a concern of IHL

how you treat your own civilians, and paragraph 5 is therefore superfluous. Without

paragraph 5, the right to food as a human right could have filled in the vacuum, prohibiting

such tactics if one’s own population is exposed to starvation.

Article 25 of the Universal Declaration of Human Rights and Article 11 of the 1966

Covenant on Economic, Social and Cultural Rights do not seem to have been in the mind of

the negotiators of the 1977 Additional Protocol. Possibly, the human right to adequate food

100 Uwe Kracht, in Human Rights and Criminal Justice for the Downtrodden, Morten Bergsmo (ed.), Martinus Nijhoff Publishers, 2003, p. 261.

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will have to yield to IHL as lex specialis or lex posterior, or it may be that future jurisprudence

or other developments will decide the matter in favour of the right to adequate food.

International Criminal Law

Under the 1998 Rome Statute of the ICC, intentionally using starvation of civilians as a

method of warfare by depriving them of objects indispensable to their survival, including

wilfully impeding relief supplies as provided for under the Geneva Conventions, is a war

crime in international armed conflict (Article 8 (2) (b) (xxv)). The Statute does not include any

corresponding provision for non-international armed conflicts.

The deprivation of civilians of food could, however, amount to a crime against

humanity under Article 7 (2) (b) of the Rome Statute, irrespective of the nature of the conflict

or whether there is any armed conflict at all. The crime against humanity of “Extermination"

includes the intentional infliction of conditions of life, inter alia the deprivation of access to

food and medicine, calculated to bring about the destruction of part of a population.

The ICRC Customary Law Study has identified a number of acts as war crimes,

enumerating and explaining them in the commentary to Rule 156. Here is included as

applicable to both international and non-international armed conflict, the use of starvation of

civilians as a method of warfare by depriving them of objects indispensable to their survival,

including by impeding relief supplies.101 This finding will, of course, not enter the crime into

the Rome Statute, but could be a basis for amendment of the Statute in 2009. It can, however,

be used as a basis for national courts to assert universal jurisdiction over such acts.

Ius ad bellum – responsibility to protect

Although the legal protection of civilians in armed conflict is not perfect with regard to

the right to receive humanitarian assistance, the lack of willingness to apply the law seems to

be a greater problem than any defects in the law. International criminal law backs up the

substantive rules in International Humanitarian and Human Rights Law, but it will itself on

occasion need to be backed up by military intervention.

Based on the “responsibility to protect” concept, the United Nations has on several

occasions reaffirmed its commitment with regard to the protection of civilians in armed

conflict, and in Security Council Resolution 1674 (2006) followed up the endorsement of this

concept at the 2005 World Summit by:

101 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Volume I, Cambridge University Press, 2005, pp. 580 and 599.

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- Reaffirming its practise of ensuring that the mandates of United Nations peacekeeping,

political and peacebuilding missions include, where appropriate and on a case-by-case basis, provisions

regarding (i) the protection of civilians, particularly those under imminent threat of physical danger

within their zones of operation, (ii) the facilitation of the provision of humanitarian assistance, and (iii)

the creation of conditions conducive to the voluntary, safe, dignified and sustainable return of refugees

and internally displaced persons…(16) and

- Urging all those concerned as set forth in International Humanitarian Law, including the

Geneva Conventions and the Hague Regulations, to allow full and unimpeded access by humanitarian

personnel to civilians in need of assistance in situations of armed conflict, and to make available, as far

as possible, all necessary facilities for their operations… (22).

In Security Council Resolution 1769 (2007) the UN has provided a chapter VII mandate

for the UNAMID, which is to be established in Darfur in the near future, showing that its

commitment does not amount only to empty words. Although the Resolution was passed

with the support of the Government of Sudan, for which that government deserves respect, it

nevertheless points towards willingness to, and legitimacy of, using internationally

sanctioned force to avert humanitarian disaster.

In the European Middle Ages, the knights’ right to carry weapons was justified by the

duty to fight for justice and defend the defenceless. May this be the ideal of the soldiers of

tomorrow, as it already has become for UN peacekeepers.

Thank you for your attention.

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IMPLEMENTING THE LAW ON

THE CONDUCT OF HOSTILITIES

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Implementation of the Law on the Conduct of Hostilities by Armed Forces: a View from the Inside

Charles GARRAWAY

Lt. Colonel (ret.), Member IIHL, United Kingdom

It is now four years since I retired from the military but I have the good fortune to

continue working in the field of International Humanitarian Law (IHL). This has kept me in

close touch with my erstwhile colleagues and so I think that, whilst I may no longer be an

‘insider’ in the true sense of the word, I have a reasonably good idea of some of the issues that

they face in today’s world. Being now on the ‘outside’, I can perhaps take a wider view of

some of these issues and also I am freer to speak! I will limit my remarks to the British

military and particularly the British Army which is the organization that I know best.

However, I believe that my comments may well be of more general application.

I thought long and hard about how to structure this presentation. My instructions

indicated that I should look at specific measures of implementation required by the armed

forces. However, precautions in attack have been exhaustively dealt with as have many of the

issues of weaponry that would be dealt with in any assessment of the affect of Article 36 of

Additional Protocol I, dealing with weapons reviews. It is an under-implemented article and

certainly does deserve more consideration but I decided, with apologies to the organisers, to

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go slightly off piste! This followed the debates on the first day and particularly the thoughtful

presentation of Jelena Pejic on human rights and IHL. She illustrated some of the

uncertainties that there are now and the fault lines that may be appearing between the two

legal regimes, particularly in relation to the use of force. This is perhaps the area of most

crucial importance to the soldier on the ground and this uncertainty is having some serious

effects within the armed forces. I thought that perhaps a worm’s eye view of some of these

effects, particularly in so far as they in turn affect implementation and enforcement might be

helpful.

When I joined the Army in the mid 1970s, we were still in the middle of the Cold War.

The world was a totally different place both in terms of the threat we faced and also in the

nature of the operations that the British military were required to carry out. There were,

however, seeds of the changes that were to come. The British Army was deployed in

Northern Ireland engaged in what we called ‘aid to the civil power’. There, on the streets of

Northern Ireland, we faced opponents who, whilst claiming to be belligerents fighting a ‘war’,

were not quite so keen to follow the rules. For the soldier, the ‘rules’ were essentially

domestic. The British Government was not prepared to acknowledge that ‘The Troubles’ were

any more than internal disturbances and tensions. Thus domestic law applied. International

law was limited in application and then it was primarily human rights bodies that played the

leading role. Enforcement was carried out by domestic courts and soldiers became used to

being subject to the jurisdiction of the local Northern Ireland courts. The soldiers might not

have liked this but at least they were familiar with the legal system and knew where they

stood. As a result, specific to mission training carried out before troops deployed could be

conducted within a clear and well understood legal regime. Of course there were grey areas –

there always will be. If the law was always clear cut, there would be no need for lawyers!

However, the fundamental basis was comparatively clear.

Now things have changed. The British Army is an ‘expeditionary force’ and deployed

all over the world. It is involved in Afghanistan in what has been described as the heaviest

fighting conducted by the British Army since Korea. It is taking casualties in Iraq and has

found itself in operations in recent years in Africa and the Balkans. The difference is that in

these modern conflicts, the legal regime is often far from clear. For example, what is the

nature of the conflict – or conflicts – in Afghanistan? Are British forces involved in a ‘Northern

Ireland type’ mission supporting the Afghan Government or is this an extension of the

original international armed conflict that started in 2001 and arguably, despite the views of

the ICRC, never ceased! If the former, how do you conduct hostilities of the intensity that we

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are seeing today within a domestic law environment? Even if one accepts, as I think one

must, that in parts of Afghanistan the violence amounts to an ‘armed conflict’ what are the

applicable rules that govern the use of force? What is the relationship between local law,

Human Rights Law and International Humanitarian Law, the law of armed conflict (LOAC)?

Answers to these questions are necessary if implementation is to be achieved. Trainers need

guidance which they can then pass on to the soldiers themselves.

However, I want to concentrate today on one particular aspect of implementation,

namely enforcement. [Eric David] will be dealing later with national and international

criminal jurisdictions. I do not intend to trespass on his territory but I do want to look at some

of the problems that the increased use of criminal sanctions to control the conduct of

hostilities has caused on the ground.

The use of criminal sanctions to control military operations is not new to the British

military. I have already referred to the Northern Ireland experience. However, here we are

faced with a multiplicity of legal regimes and enforcement agencies. “Nullum crimen sine leg”

is a fundamental principle of criminal law. In our domestic law, this principle is respected in

that most of the criminal law is now in statutory form. Even in common law jurisdictions, the

idea of crimes ‘at common law’ is dying out, largely under the influence of Human Rights

Law which demands specificity. However, I would suggest that we seem to be moving in

precisely the opposite direction in relation to the use of criminal sanctions in relation to the

conduct of hostilities. Treaty law is by nature different from domestic statutory law. It was

once said that a treaty was a disagreement reduced to writing and those of us in this room

who have been involved in treaty negotiations will know just how true that is! However, it is

these treaty texts that produce the criminal offences for which our Service personnel are liable.

It was to gain some specificity that the US demanded at Rome that ‘Elements of Crimes’

should be drafted and whilst many thought at the time that this was an unnecessary and

wasteful exercise, it in fact proved singularly useful in throwing up areas of disagreement.

None more so than on the famous Article 8(2)(b)(iv) – the proportionality offence – where

there is even disagreement on what the elements mean! Where does all this leave the soldier?

The answer is that he – and his commanders – is becoming increasingly nervous. I have said

to many courses here in Sanremo that the law must be clear because it is the ordinary soldier,

sailor and airman that has to apply it. At present, I would suggest that the application of the

law to modern day conflicts is far from clear and that is bringing the law into disrepute.

The problem is not so much though in the law itself but in the contexts in which it has

to be applied. LOAC has traditionally been divided into the law relating to international

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armed conflict and that relating to non-international armed conflict with internal violence

below the threshold of armed conflict being left to human rights and domestic law. But the

boundaries between these various regimes, always difficult to ascertain, are now completely

blurred. Let’s look again at Afghanistan. There were always at least two conflicts going on in

Afghanistan. First there was an internal armed conflict between the de iure Government and

the de facto Government of the Taliban. Then there was the intervention by the US led

coalition against the Taliban – usually classified as an international armed conflict. The

Taliban were driven into the border regions but did that international armed conflict ever

cease? The ICRC decreed that, when Hamid Karzai became the acknowledged Government

in Afghanistan, the international armed conflict ceased and it became a non-international one.

But what had changed? The Taliban never were the de iure Government of Afghanistan and

the cloak of legitimacy had merely passed from the Northern Alliance to Karzai.

Furthermore, the writ of the Kabul Government never ran to the border areas which remained

under Taliban control. Surely, it is theoretical, to say the least, to argue that a Taliban soldier

captured one day in Tora Bora is entitled to PW status but the next day is not, simply because

of a political decision made well away from the conflict zone. It becomes even more

complicated if we are introducing human rights concepts into non-international armed

conflict as a result of the lack of combatant status, requiring that the use of lethal force is used

only as a last resort and efforts must be made to capture people first.

This problem over legal regimes is seen at its most acute when it is necessary to draft

Rules of Engagement (ROE). ROE are, of course, not the law in themselves but they need to

reflect the law. There is a fundamental difference between what I will call ‘combat’ ROE and

‘non-combat’ ROE. The former, based upon LOAC, are fundamentally status based. Is the

person in front of me a combatant or otherwise taking a direct part in hostilities? If they are,

they can be engaged with lethal force, regardless of the immediate threat that they pose to me.

On the other hand, non combat rules are threat based, I may engage only with such forces as

is necessary to suppress the immediate threat with which I am faced. If that is lethal force, so

be it but if there is a lesser way then I must use it. There is a fundamental difference between

the two concepts but there is a growing blurring of the distinction. We have already seen in

Nils Melzer’s presentation on “Direct Participation in Hostilities” the suggestion that civilians

who take a direct part in hostilities should be subject to a threat based response and captured

if possible. But on the modern battlefield it may simply not be possible to distinguish

between the lawful and unlawful belligerent, the combatant and the civilian who has taken up

arms. To expect the soldier to make that distinction is ridiculous. It is the first step to what

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some have already suggested, introducing the threat based human rights rules into LOAC.

Whilst it sounds reasonable, it is in fact nonsense and would put the lawful combatant at

serious risk. Whilst he is often required to fight today, as described by Israel’s former Chief

Justice Barak, with one hand tied behind his back, it would go too far to tie both. Soldiers

have the right to life as well!

The difficulty again here is in identifying the type of conflict in which the service

person is engaged. We may agree that in international armed conflict, status based rules apply

(though as I have pointed out there are now arguments even about that). We may also agree

that in situations of internal violence and disturbances, threat based rules should apply. But

the vast majority of conflicts in which armed forces now find themselves are between those

two extremes. In Iraq today and Afghanistan, the nature of the conflict (or conflicts) is a

matter of dispute. It is further disputed what is the law that applies to those conflicts and

what should be the basis for any rules of engagement. Let me give you an example. On the

fourth day of the last Iraq war, when fighting was still going on around Basra, troops opened

fire on a person who advanced on a checkpoint throwing items at the soldiers. Fire was only

opened after the checkpoint commander had got down and moved towards the individual

but then found his own weapon jammed leaving him defenceless before the advancing

thrower (the objects turned out to be stones). There was a formal investigation by both

military and civil authorities at the end of which – some three years later – the soldiers were

told that there would be no charges. The public reason given was that the soldiers claimed to

have been acting in defence of the commander and there was no evidence to contradict that

version of events. That implies a threat based response and it may indeed have been that they

were on self defence rules of engagement. If so, that analysis is a reasonable one if the

proposed charge was one of disobeying a lawful order. But it was not. They were under

investigation for murder! But this was an international armed conflict and if LOAC applied

surely the test for murder, either as a war crime or under domestic law, was whether they

thought the person was a combatant or taking a direct part in hostilities. If either of those,

they were entitled to engage with lethal force. It might be argued that if the person was a

civilian not taking a direct part in hostilities, then a threat based decision was suitable but it is

stretching imagination to try to think of an example of a civilian who by his deliberate actions

is posing a direct threat to you but who does not qualify as taking a direct part in hostilities.

Even Nils’ excellent paper would have difficulty there!

This brings me to my third point, the need for support for Service personnel in such

cases. These soldiers faced three years of investigation under the allegation of murder, an

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offence that carries a mandatory life sentence. The charges were not proceeded with but the

damage was done. There have been other high profile cases of investigations failing to lead to

any charges or ending in acquittals. Those investigated have become so disillusioned by the

process that they have left the Army. These include two full Colonels who have publicly

castigated the way that they were treated.

Am I saying that there should be no investigations? Not at all. I firmly believe that

any allegation should be investigated and I say so speaking as someone who has himself been

accused of and investigated for war crimes. It is not a pleasant experience but a necessary

one. However, it needs to be sensitively handled. There is a growing feeling within the

military that the presumption of innocence in such cases has been abandoned. In Northern

Ireland, soldiers accused of operational crimes were removed from theatre back to their

regimental depots where they had full support. Defence was at public expense and though

the case was heard usually in a civil court before a judge alone, the soldier felt that he had

institutional backing.

Now things have changed. The reports that are coming out are that soldiers feel

abandoned by the system. Military commanders are under pressure to distance themselves

from cases to avoid any hint of ‘command influence’ and soldiers feel abandoned. Legal aid is

still usually available but is not automatic and there is an increasing distrust in the justice

system whether military or civilian. In military cases, the Service personnel feel that they are

being made political scapegoats and if civil trial is recommended, the serviceman asks – quite

fairly – how a civilian jury with no military background or experience can be expected to sit in

judgement on what may have been a split second decision in the heat of battle. The law is

increasingly being seen as a political weapon – not as a neutral monitor.

These views can and must be overcome. The first Geneva Convention was launched

to relieve the suffering of combatants on the battlefield. LOAC was the soldier’s friend. As

the law moved to the regulation of the conduct of hostilities, the majority of rules remained

reflective of military common sense. Fighting by the rules not only made legal sense; it made

military sense as well. Frankly, they still do.

However, soldiers today are increasingly viewing the law – and lawyers – as their

enemy. Charles Dunlap invented the term ‘lawfare’ – a concept that has been taken up by

others particularly in the United States, the use of law as a political weapon in conflict. That is

at the strategic level. However, soldiers are beginning to view ‘lawfare’ as a tactical weapon

as well and not one that helps them. The 20th Century was a violent time but what it did mean

was that, certainly until the last quarter, the majority of the population of the United Kingdom

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had been affected by war. Many of those who formed ‘civil society’ had military experience

and had some understanding of how militaries operate. That is no longer so. Go into any bar

in England and you will find virtually nobody who has military experience – indeed in

Garrison towns, many bars bar ‘squaddies’ from their premises! There is a growing divide

between civil society and the military who serve them. This is not good news. Some sections

of civil society see military personnel as ‘embryo war criminals’. They take the view that the

death of ANY civilian in war is avoidable and therefore has to be a crime for which someone

is responsible. Even my old friend Eric David took the line at a Conference that whilst he

accepted the principle of proportionality when planning an attack, the commander was

responsible for all civilian deaths that followed an attack even if they were proportionate. On

that basis, every commander is a war criminal. Similarly, some take the view, mixing ius ad

bellum and ius in bello that if a war is illegal, every soldier is a war criminal by definition! The

problem is that if you treat soldiers as war criminals, they will increasingly act as such. They

see the bad guys ‘getting away with it’ whilst they are held accountable for everything and

anything.

Again, I am not saying that there should be no investigations. Far from it. However,

what I am saying is that we should restore the public presumption of innocence. We ask a lot

of our Service personnel. On our Remembrance Day , we intone the quote from a cemetery

“When you go home tell them of us and say for your tomorrow we gave our today". In human rights

terms, we ask them to lay their right to life on the line so that we may continue to live in

peace. We ask them to comply with rules in doing so, rules that may sometime increase the

risk that they already take, but which are there for a reason. Enforceability of these rules is

important and soldiers, being a disciplined force, can understand that. However, they must

be clear and credible and enforced in a manner appropriate to the circumstances.

At the moment, there is a danger that the soldier will not see the law as clear – even his

legal officers can’t agree on it! As a result, it will soon lose its credibility with commanders.

In those circumstances, enforcement will become seen as a battle between military ‘realists’

and civilian ‘idealists’, another form of lawfare. That would put at risk the whole carefully

constructed edifice of LOAC and do nobody any good at all.

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Compensation for the Victims of Chemical Warfare in Iraq and Iran

Liesbeth ZEGVELD

Leiden University, Netherlands

The case against Van Anraat

It has been two decades after the end of the Iran-Iraq War. Yet, Iranian and Kurdish

victims of Iraq’s chemical weapons still are seeking judicial redress.

On 9 May of this year, the Dutch businessman Frans van Anraat was convicted for

complicity to war crimes. Van Anraat sold huge quantities of the chemical thiodiglycol (TDG)

to the regime of Saddam Hussein. The material was crucial for the production of mustard gas.

This gas was used by the Ba’athists in the war against Iran and in their attacks on Kurds in ‘87

and ‘88.

Van Anraat was convicted of violation of the 1925 Geneva Gas Protocol, as well as

customary law prohibiting the use of chemical weapons and indiscriminatory attacks. These

violations constituted not only a war crime committed by Van Anraat. They also constituted a

tort against those who had suffered damage as a result of these crimes. 16 Victims of chemical

attacks, both from Iran and Iraq, joined in the criminal case against Van Anraat. These victims

submitted to the Dutch Court a claim for compensation for the damages they have suffered.

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I will discuss a few matters that are outstanding in the case of the victims, who I

represented in court. But let me first address the following question.

Compensation for violation of the law on conduct of hostilities

Is there any reason to assume that compensation for violation of the law on conduct of

hostilities is different from compensation for violation of the Geneva Rules or International

Humanitarian Law (IHL) in general? The answer seems to be no. Remedies are not affected by

the origin of the obligation, Hague or Geneva law. Indeed, Article 3 of the fourth Hague

Convention of 1907 was the first article to lay down the principle of compensation. This rule

applies to all the regulations in the 1907 Convention: both the rules on the conduct of

hostilities and the rules on protection of persons in the power of a Party to the conflict.

As a matter of principle, there is no reason why compensation should be different for

violations of the law on conduct of hostilities as compared to other IHL rules. The principle is

simple: a person who by an act contrary to law damages the right of another, is obliged to

provide redress for the resulting damage. This principle is equally applicable to the Hague

and Geneva Law.

However, the content of a particular substantive rule may affect the regime of

compensation. Concepts of Hague Law such as military necessity, proportionality, distinction

between civilians and combatants are likely to influence questions of evidence, burden of

proof, and reparations. In general it can be said, I believe, that the law on conduct of hostilities

is more complex than the Geneva Law and that this will have an impact on the matter of

compensation.

There is little practice, however, to prove this assumption. At least when the focus is

on legal cases brought by individual victims. Victims are generally denied the right to claim

compensation and States are not considered liable to pay compensation. Factual findings as to

the wrongdoings and illegality of conduct of hostilities are consequently also rare.

What about future perspectives? A recent development in the context of international

Criminal Law widely opens the door for victims’ claims. The International Criminal Court

may award reparations to the benefit of individual victims. It may do so directly against a

convicted person. The Statute of the ICC is the first embodiment of the right of victims to

reparations.

This principle laid down in the ICC Statute has been derived from national criminal

law systems. In civil jurisdictions, such as France, Germany and also the Netherlands, victims

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can join in the criminal proceedings and raise a compensation claim based on tort under

domestic law. The case against Van Anraat is an example.

The victims’ claim filed against Van Anraat was awarded in first instance, but

dismissed in appeal. Still it offers interesting thoughts about compensation cases for violations

of Hague Law. I will discuss the following aspects of this case: the mass nature of the victims’

claims; establishment of the facts and determination of the damages. Some are specific for

compensation for violations of the law on the conduct of hostilities. Others may arise in any

compensation case under IHL presented in national or international criminal courts.

Mass claim

The total number of victims of Iraq’s chemical warfare is high: 20.000 in Iraq. 100.000 in

Iran. In general the number of victims of violations of the law on conduct of hostilities is likely

to be large, for example, when compared to the number of victims of violations of Geneva

Law. The available data on civilian casualties rarely distinguish between victims from

violations of The Hague Law and victims caused by violations of Geneva Law. However,

clearly, also in the present conflict in Iraq, the victims from torture and other illegal treatment

are far fewer in number, than the victims from indiscriminatory and direct attacks on

civilians.

How does the mass nature of the violations affect the prospect of compensation claims

by these victims in national or international criminal courts? The mass nature of the violations

is one of the reasons why legal avenues for victims to claim compensation are often opposed.

It is feared that thousands or millions of individuals will file a lawsuit. In the same line, it is

claimed that the traditional method of individualised adjudication, when applied to mass

claims, is undesirable. It would result in unacceptable delays and substantially increased costs

for both claimants and respondents.

Also in the Van Anraat case, the Dutch Court feared that we would bring large

numbers of victims to court. At one of the first sessions, the president said to me: Ms Zegveld,

you are not going to take 5.000 victims with you to the court, are you? The Court’s fear was

understandable. The Dutch legal system is not equipped to deal with mass claims. Under

Dutch law, there is no class action. Under the Dutch Code of Criminal Procedure each and

every individual has to start his/her own case, representing only him- or herself. We did not

take 5000 victims to court, but only 16. We did so for practical reasons and so as not to put off

the Court. This decision meant that the other victims were left with empty hands.

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How does the ICC handle the mass nature of the crimes coming before it? Of course

the ICC is still to begin. No victim has yet requested for reparations since no trial has yet

started. The cases are still before the Pre-Trial Chamber. But, since the start of the proceedings,

victims have systematically filed applications for participation. A few hundred are already

involved. Potentially, the group of victims the ICC will be facing is even larger. Indeed, it is an

outspoken aim of the ICC to reach as many victims as possible. Under the Rules, the Registrar

has an obligation to give publicity “as widely as possible and by all possible means” to the

reparation proceedings before the ICC to victims.

The ICC’s approach towards the mass nature of victims’ claims is mixed. In principle,

it takes an individualistic approach. Rule 85 states that a victim is a natural person who has

suffered harm as a result of the commission of any crime within the jurisdiction of the Court.

The Rules thus address victims as individuals, rather than as groups or as members of groups.

The Statute, like Dutch law, does thus not provide for class actions.

At the same time, the Statute also offers mechanisms meant to assist the ICC in

handling large numbers of victims. During the drafting of the Statute, many delegations were

concerned that the potential numbers of victims might make their participation practically

impossible. So they provided for collective reparations. And also they drafted the Rules so as

to leave a wide margin of appreciation to the ICC. So it is left in the hands of the ICC to

determine the modalities for victims to exercise their rights to participate.

However, so far I can see little awareness of the ICC of the potential problem of great

numbers of victims wishing to participate. I do not have the time to give you some examples.

Yet, when examining the decisions both of trial and appeal chambers dealing with victims, the

conclusion can only be that, so far, the judges have not interpreted the articles in a way so as

to narrow down the participation of the victims.

What if – in the case against Van Anraat - many more victims would have made it to

the Dutch Court? For sure, the Court could not have refused them. But there would have been

the potential of blowing up the system, each of them being entitled to make a statement to

clarify his or her claim, each of them being entitled to question witnesses in court.

There exists little precedent for how many victims should be dealt with by a single

court. Easy answers are therefore not available. Perhaps it is not the principle of large

numbers of victims participating that is the problem, but rather the modalities of their

participation that need to be resolved. That may be. Time will tell.

Fact finding

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Compensation cases brought by civilians and combatants seem to be the most difficult.

They seem to allow for less clear establishment of conduct in violation of International

Humanitarian Law, compared to, for example, cases of prisoners of war and civilian

detainees. The reason is that the circumstances on the battlefield involving civilians and

combatants are likely to be more hazy. Accurate and reliable information is often difficult to

obtain.

A tremendous advantage of compensation cases that are linked to criminal

proceedings is that the facts proving the crimes are to be provided through the criminal

proceedings. So it is up to the prosecutor to find the facts. Of course the prosecutor, both at

the national courts and the ICC, faces his own problems in establishing the facts. This will in

turn affect the victim’s claim because, if the prosecution is not successful the victims will lose

the opportunity to have their requests for reparations dealt with by the Court.

In the case against Van Anraat, the prosecutor, and thereby the victims, could benefit

from a UN investigation team that was set up to investigate allegations of chemical weapons

use in the Iran-Iraq War. The UN team issued seven reports between 1984 and 1988. One of

the findings of the investigation team was that the chemical weapons were “without any doubt

used against Iranian forces by Iraqi forces, also causing injuries to civilians in Iran”. It also

established that various kinds of agents had been used. “Predominantly mustard-gas.” It is also

on the basis of these UN reports that Van Anraat has been convicted for selling materials that

served for the production of mustard gas used by Iraq.

A practical problem regarding fact finding is lapse of time. In some instances the UN

team went to the spot almost immediately after the attacks. In other instances, there was a

delay of about two weeks between the dates of the alleged attacks and the arrival of the

mission at the site of the attacks. The investigation team pointed out that:

“the intervals between the alleged attacks and our actual arrival in the areas to collect samples

for chemical analysis resulted in the degradation and evaporation of chemical agents.”

It stressed that:

“[I]n order to facilitate such analysis it is important that sampling be done as quickly as

possible.”

In sum, the Van Anraat case was concerned with a conflict that has been one of the

rare cases where fact finding was done. In the majority of armed conflicts, the parties cannot

agree on such missions. Legal actions brought – or considered to be brought – will then suffer

from a lack of written records.

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Otherwise, the victims in this case greatly benefited from the criminal proceedings

against Van Anraat. Their case was built on the indictment and it was for the prosecutor to

prove the allegations in the indictment.

Damage

While the facts proving criminal behaviour are for the prosecutor to deliver, this is

different for the damage suffered by the victims. In principle, it is for the victims to prove the

scope of their injuries and losses. However, this burden of proof resting on the victims, turned

out to be not that heavy in this particular case. For several reasons.

In the first place, in this kind of compensation proceedings, that are linked to a

criminal case, the victims’ claims are awarded on the basis of fairness. Under Dutch law,

victims are thus not required to provide definite proof of their injuries.

Also the ICC applies a relaxed standard of proof for reparation claims. It requires

victims to provide “relevant supporting documentation” for their reparation claim only “to the

extent possible”. In case of lack of sufficient evidence, the ICC shall have to adopt measures to

fill the evidence gap. It may either follow the road taken by Dutch domestic court and award

the claims on the basis of equity. Another option for the ICC is to collect itself the necessary

evidence. This could involve requesting the cooperation of States or international

organizations.

A second reason why chemical war victims didn’t have a heavy burden proving the

scope of their damage, was because their injuries were not disputed. To a large extent, they

were still clearly visible. The victims of mustard gas still had scars of the blisters that resulted

from second degree burns. Some instances displayed respiratory problems. Some suffered

from sight deterioration over the years, a few ending up blind. Many of the victims had been

examined by medical doctors in Iran and Europe over the years. These doctors confirmed in

this case that they displayed typical symptoms of exposure to mustard gas. Otherwise, the

UN investigation team appeared useful in this respect too. It had investigated the injuries and

recorded the evidence.

A third – and perhaps the most important reason - why the victims did not have a

heavy burden proving the scope of their injuries, is that under the Dutch criminal code of the

80’s (when the chemical attacks occurred), the victims could be granted not more that € 670

per person. Of course this is a symbolic amount in view of their injuries.

In the 90’s, the law changed. The amount of compensation that can be claimed by

victims is no longer restricted.

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It should be noted that Dutch law does not provide for collective compensation. This is

likely to raise problems in case of mass claims. When large groups of victims are involved, it

may be difficult to quantify their damagess exactly. It may be even more difficult to redress

their damages individually. Collective awards may therefore be more suitable.

Another reason to grant a collective award, is that there are likely to be few resources

available. Even the small amounts of € 670, when put together, mount up.

As I pointed out earlier, the ICC does provide for the possibility of collective

reparations. Rule 97 provides: “the Court may award reparations on an individualized basis or,

when it deems it appropriate, on a collective basis or both.” So, the beneficiaries of reparation orders

may be either individual victims, groups of victims, or entire communities.

Conclusion

I shall come to my conclusion. The tort claims of the chemical warfare victims in the

Van Anraat case are not directly based on IHL, or the Law on the Conduct of Hostilities for

that matter. They are based on Dutch civil law. But the 1925 Gas Protocol, and the customary

prohibition on the use of chemical weapons did constitute the substantive tort. So the Law on

the Conduct of Hostilities was – indirectly – a source of rights enforceable by individual

victims in a domestic court. So this case shows that individuals are no longer only victims of a

violations of the law on conduct of hostilities. They can also present their claim to a tribunal.

This development – of compensation claims linked to criminal proceedings - is part of

the growing emphasis on the role of victims by International Human Rights and

Humanitarian Law.

At the same time, on the basis of this single case, and in the near absence of similar

practice, it is impossible to extract general rules. We are still far from a coherent theory on

different aspects of this kind of compensation cases. Recognition of a private remedy requires

the development of a body of procedural rights afforded to victims, which allows them to join

in criminal proceedings.

IHL does not provide any principles for determining how reparation is to be made for

the injury caused by the wrongful acts. Nor does it give any methods for assessing the

damage. Partly the relevant rules can therefore be derived from domestic law. An important

question will be to what extent these domestic courts work in isolation, or whether they will

draw from international sources such as human rights treaties.

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Also the ICC Statute does not contain provisions on burden and standard of proof,

causation, etc.. It is up to the ICC to establish – on a case-by-case basis - these procedural

criteria in relation to reparation cases.

Ultimately what we need is a practical guide that can be used by both tribunals and

victims.

Having stressed this important development for victims’ compensation in

International Criminal Law, it should be recalled that the victims of the chemical warfare in

Iraq lost their case in appeal. The case is currently pending before the Supreme Court in the

Netherlands. If the claims are not granted in the criminal case, they will be brought to a civil

court. The reason why the appeals court rejected the compensation claims was that it

considered them to be too complex to be decided by a criminal court. Complex aspects were

deemed indeed not so much the facts or the damages. Difficult issues according to the Court

were applicable law and statute of limitations. So the criminal proceedings offer a way out of

some difficulties (like fact finding and establishing the damages). But serious obstacles

remain. The victims’ claims have an accessory nature. The Court to which these claims are

presented, is in the first place a Court to try accused rather than a Court to provide

reparations. It is therefore not equipped to deal with complex questions of civil law. Future

success of these types of claims is therefore uncertain.

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CONCLUSIONS OF THE ROUND TABLE

The Contemporary Challenges to the Law on the Conduct of Hostilities

Philip SPOERRI

Director for International Law and Cooperation within the Movement, ICRC

Introduction

The conduct of hostilities has been chosen as the theme of the XXXth Round Table on current

issues of International Humanitarian Law, held on 6-8 September 2007, to mark the

anniversary of the 1907 Hague Conventions and the 1977 Additional Protocols to the Geneva

Conventions. The idea was to focus on both the historical roots and contemporary challenges

of this law, on the evolution of the norms throughout the past century and on their current

application. The program was dense and ambitious; but it was necessary to tackle many

different issues to have an overview of the main challenges. The number of critical questions,

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as well as burning issues on the matter, implied an analysis of a wide-range of key sections of

the legal regime regulating the conduct of hostilities.

The program was also innovative in certain respects. The idea of case studies for

example was tested for the first time in the Round Table, and proved to be workable even

with a large group, as was the case. The division of participants in working groups, rarely

done in the past, created an intellectually challenging environment and this method of work

should be borne in mind in the future. It leads to a strong incentive for interaction and

dialogue which is essential in the context of the Round Table. Overall, the approach was

successful. The Round Table was also very fortunate to host exceptionally distinguished

speakers and moderators. On this occasion, excellent presentations were delivered. These

concluding remarks cannot offer an exhaustive summary of all the issues addressed in these

presentations and of the interesting and fruitful discussions they generated. They will simply

list and comment on the main points that were raised.

Session I: The historical and philosophical context

The objective of the first session was to place the law on the conduct of hostilities in its

broader ethical context. First, the point was made that war is a moral context, in the sense that

the violence of war must involve moral limits. In particular, restraint, proportion and

distinction were mentioned as the key moral criteria applicable in any armed conflict. Second,

securing the value of human persons constitutes the basis on which the humanitarian

philosophy of war relies. This philosophy believes that every individual is valuable and

deserving of “respect”. This is the ultimate rationale leading to a minimum protection of

combatants in the course of the fighting and which prohibits the infliction of superfluous

injury or unnecessary suffering. It should also apply to the protection of civilians who do not,

or no longer, participate in hostilities.

These philosophical bases paved the way for the formulation of general principles of

International Humanitarian Law (IHL) which still apply today. In addition, they are as

pertinent to "new" types of conflicts and "new" forms of waging war as they were to more

traditional conflicts or forms of warfare. In other words, the general principles of IHL are

timeless and remain relevant despite evolutions that may affect the conduct of warfare.

However, these general principles proved insufficient in ensuring adequate protection

under IHL. A more detailed regulation turned out to be essential in order to soften the

haziness floating around the generality of these principles. Additional Protocol I, therefore,

filled an important gap by leading to the adoption of detailed rules. This instrument also

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added an element of stability to the law by contributing to frame the interpretation and

application of the rules. The main provisions of the Protocol were not challenged during the

Round Table, strengthening existing treaty and customary law. The conclusion was more a

call for further clarification of certain issues.

This call for clarification is even more important given that the face of war is changing.

These changes were clearly highlighted throughout various interventions during the Round

Table. Development of asymmetric warfare, combined with the possibility for non-State actors

- even teenagers - to design a highly lethal weapon without a great deal of technical skills

seems to be one of the main challenges. This challenge is even more stringent given that the

threats stem from the very elements of globalization such as air transport and internet and

raise the issue of the efficiency of the tools used to monitor situations of everyday life that

may become significant threats. The most preoccupying question is clearly that these future

"combatants" are now outside the system.

Session II: International Humanitarian Law and Human Rights Law

The second session of the Round Table was devoted to IHL and Human Rights Law which

are both applicable to the use of force in armed conflict situations. In this respect, a consensus

emerged to the fact that International Humanitarian Law is the lex specialis.

This general conclusion, however, does not solve the many issues that remain open

regarding the eventual interplay between these two bodies of law in many specific situations,

in particular in non-international armed conflicts. In that respect, it has even been suggested

that a new specific IHL model, different from the simple "capture or kill" approach, could be

envisaged. While no agreement was reached on this difficult issue, a call was made by

Professor Françoise Hampson for an expert process to further deepen this question. The law

applicable in the context of counter-terrorist operations - and in particular on the "fight

against terrorism" - was also addressed along the same lines.

Session III: Definitions of "combatant", "armed forces", and "civilians"

Session III addressed the question of the definitions of "combatant", "armed forces" and

"civilians" which is probably one of the most complex issues under IHL. Already in 1874 in

Brussels, the definition of these three terms was a point of controversy and even if

considerable progress has been made since, more work is needed to clarify the rules in this

respect.

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In international armed conflicts, treaty law provides relatively clear definitions of

"combatant", "armed forces" and "civilians". However, questions arose as to eventual

differences of view between States Parties or not Parties to Additional Protocol I. Further

issues were raised in respect to organized armed groups operating within an international

armed conflict, while not belonging to a Party to the conflict, i.e. are they civilians or

"unlawful" combatants and what are the legal consequences of such determinations?

In non-international armed conflicts, there is no treaty-law definition of "armed forces"

and "civilians" and the notion of "combatant" is not used at all. It is clear from practice that

members of State armed forces are not civilians. But the question arose as to whether

members of organized armed groups are civilians and whether they lose their protection only

during specific acts of direct participation in hostilities (specific act approach) or for the entire

duration of their membership in the group (membership approach). A compromise was

proposed in the course of the Round Table which consisted in retaining a functional or

restrictive membership approach according to which only an actual "fighter" would

continuously lose protection against direct attack. All other persons would be civilians

protected against direct attack unless and for such time as they directly participate in

hostilities.

These issues were addressed - from a targeting point of view - during the ICRC expert

process on clarification of the notion of direct participation in hostilities. It had been proposed

to make a distinction between organized armed forces or groups of Parties to the conflict, and

the civilian population. Civilians remain civilians regardless of whether they act lawfully or

unlawfully, in accordance with or contrary to IHL. This reflects the functional criteria

discussed by all speakers. The ICRC interpretative guidance proposes that civilians lose

protection only during specific acts directly causing harm of a certain threshold (objective

criterion). This stands in a certain tension with the claim made by some speakers who base

loss of protection on subjective intent (voluntary/involuntary human shields), rather than

direct/indirect causation of harm.

In the course of the discussions, it was emphasized that even when a civilian loses

protection against direct attack, IHL imposes certain constraints. Thus, all feasible precautions

have to be taken in identifying legitimate targets and, in case of doubt, a civilian must be

presumed to be protected. Nevertheless, civilians having directly participated in hostilities

remain subject to domestic prosecution, even after they regained protection against direct

attack. The question was also raised as to what extent basic notions of humanity can require a

"capture rather than kill" approach.

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Concerning the notion of military objective, a wide consensus emerged to the effect that

any attacks on civilian morale would be an undisputed violation of IHL. The demonstration

made by Hays Parks of the military inefficiency of these attacks throughout history, as well as

the powerful words of Yoram Dinstein during one of his interventions at the Round Table,

were recalled to illustrate this purpose.

A consensus also emerged that there is no need to revise the definition of Article 52,

paragraph 2, Additional Protocol I. The current definition is a flexible and valuable guide. It

takes into consideration the fact that objects used for military purposes - at a certain point -

may become civilian objects at a later stage and is therefore sufficiently adaptable to remain

relevant in a changing environment. However, this definition is not always easy to interpret

and there is probably a need for further clarification – at least for an agreement on the main

parameter that must be taken into account when applying the two-pronged test.

Finally, throughout the discussions, it appears clearly that a distinction must be made

between armed violence with a belligerent nexus, and violence or criminality unrelated to the

surrounding context of hostilities.

Session IV: Case study: indiscriminate attacks, precautions, human shields

Session IV was meant to be an illustration of the difficulties that may arise practically

when applying obligations set forth in relatively abstract terms.

The principle of proportionality was used as an example of how difficult it may be in

practice to apply these principles in the context of an armed conflict. Beyond the explicit cases

of clearly excessive damages to the civilian population or civilian objects, it may indeed be

extremely difficult for members of the armed forces acting in good faith to identify the precise

moment when collateral damages reach the threshold of a disproportionate attack. Of course,

the emergence of international criminal tribunals and courts and the development of

International Criminal Law may help in the future to better define, for example, the terms

"excessive collateral damage". However, it seems clear that even if the law is adequate and

new norms are not required, guidelines on how to apply concretely the principle could prove

useful to ensure a proper application of the law.

Along the same lines, presentations and discussions on the precautions required in

attack and against the effect of attack, as well as on the prohibition of the use of human

shields, revealed that the concrete application of the treaty and customary rules regulating the

matter was sometimes complicated. It was acknowledged that the constitution of groups of

experts could help to "operationalize" these provisions.

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Session V: Working groups on arms

Session V was devoted to means of warfare. Three working groups were organized

respectively on biotechnology and weapons, "non-lethal" weapons and their legal

implications, and on weapons causing post-conflict effects on civilians (mines, cluster bombs,

explosive remnants of war). Summary reports of the debates within these three working

groups were delivered.

Session VI: Environment and humanitarian assistance

Session VI dealt with humanitarian assistance and the protection of the environment in

the context of an armed conflict. In relation to the first topic, the Round Table was an

opportunity to recall that the consent of the State is essential in the event humanitarian

assistance is carried out. Furthermore, Professors Von Heinegg and Dinstein recalled that it

must be performed specifically by neutral organizations.

In relation to the protection of the environment, it was agreed that this topic had been on

the back burner for quite some time now and that it deserved increased attention.

Furthermore, Dr. Spieker held that Articles 35 and 55 of Additional Protocol I led to an

inoperative regime in matters of protection of the environment.

Session VII: Air and missile warfare

Session VII was devoted to the theme of air and missile warfare. It was acknowledged that

few areas of the law regulating the conduct of hostilities are not yet comprehensively codified

and that air and missile warfare was certainly the main one. While the rules on aerial

bombardment provided for in Additional Protocol I are absolutely essential, they do not cover

all aspects of air and missile warfare. The efforts undertaken by a group of experts under the

auspices of the Harvard Program on Humanitarian Policy and Research (HPCR) are therefore

an important and useful step towards codification of these rules.

On this occasion, Yoram Dinstein explained that the Manual on International

Humanitarian Law in Air and Missile Warfare (currently being drafted) will elaborate on the

general legal framework, reiterating key principles and concepts. Given the rapid and

constant evolution in matters of aerial techniques and strategies, the Manual's aim is to help

bridge the current gap between positive law and current practice.

Session VIII: Implementation

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The last session of the Round Table was devoted to the implementation of the Law on

the Conduct of Hostilities. It was clear that there was a divergence between the needs

expressed by the military of having at their disposal clear and concise rules and the concerns

of the lawyers relating to the interpretation of the law. Colonel (ret.) Garraway identified as a

major challenge the difficulty to agree on applicable law especially with respect to the

situation in Afghanistan or in Iraq.

It was further emphasized that the domestic judicial system is too often inexistent or

ineffective due precisely to the situation of armed conflict. Nevertheless, these last decades

have witnessed vast developments in the field of International Criminal Law, with the

establishment of the international ad hoc Tribunals and of the International Criminal Court.

Thanks to case law, these international criminal Tribunals have already clarified certain

concepts and rules of the conduct of hostilities. Some participants argued, however, that the

system is still insufficiently developed. Françoise Hampson, for example, asked for the

establishment of a civil accountability mechanism on the model of International Human

Rights Law.

Conclusion

The Round Table concluded by emphasizing that what was needed was not new law

but interpretative guidance on the application of the law. It addressed most of the challenges

faced by the law on the conduct of hostilities and identified areas of the law where a

clarification process by groups of experts could be useful. While it left many questions

unanswered, it constituted a point of departure for new discussions.

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Considerazioni finali

Giovanni Lorenzo FORCIERI

Sotto Segretario di Stato, Ministero di Difesa, Italia

Buon giorno. E’ pr me un vero poter partecipare a questa Tavola Rotonda organizzata

dall’Istituto Internazionale di Diritto Umanitario di Sanremo

Credo di poter trarre alcune considerazioni ora, avendo ascoltato, in parte, gli

interventi della mattinata, le conclusioni, ed avendo letto il documento preparatorio che si è

trattato di una riunione importante, positiva ed anche proficua.

In questi giorni abbiamo visto la partecipazione di esperti e di personalità provenienti

da diversi Paesi e noi come Italia siamo orgogliosi di ospitare sul nostro territorio un Istituto

che svolge un compito così importante che, in un mondo globalizzato dove le violenze si

moltiplicano, è in qualche modo chiamato a confrontarsi sempre con situazioni nuove e con

sfide nuove. Il Governo italiano che io qui rappresento seppur tenendo conto dei problemi e

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delle difficoltà che oggi gravano sulla finanza pubblica in generale dei Paesi Europei ed in

particolare del nostro Paese intende concretamente sostenere anche sul piano finanziario gli

sforzi di trasformazione e di rilancio che verranno portati avanti dalla nuova leadership

dell’Istituto anche sulla scorta delle raccomandazioni formulate dalla Commissione per il

Futuro dell’Istituto, appositamente costituita e presieduta dal Sindaco di San Remo.

L’Istituto gode di buona salute ma non c’è dubbio che abbia ancora più bisogno di

professionalità, di managerialità, di sforzi collettivi e sulla base della positiva esperienza del

passato occorre costruire qualche cosa con lo sguardo rivolto verso il futuro. L’Istituto deve

potersi aprire alla partecipazione di esperti di diversi continenti adottando anche criteri di

rotazione nell’assegnazione degli incarichi apicali, esso deve poter sviluppare una importante

e fiduciosa cooperazione con le competenti organizzazioni internazionali, a cominciare dal

Comitato Internazionale della Croce Rossa, ma anche l’UE e la NATO sotto la cui

responsabilità si svolgono ormai la maggioranza degli interventi di mantenimento della pace.

L’Italia è a tutti gli effetti il primo contribuente del bilancio dell’Istituto, essa è pronta,

così come ha già indicato il mio collega Vernetti nel suo intervento nei giorni scorsi, ad

incrementare il suo apporto sia attraverso il contributo al bilancio ordinario sia attraverso il

finanziamento di specifiche attività di formazione e di ricerca, non soltanto nel campo del

diritto umanitario applicabile ai conflitti armati ma anche in quello del diritto dei rifugiati, con

particolare riferimento al delicato nesso che esiste tra i fenomeni di migrazione e il diritto di

asilo. Voi sapete che ci sono più candidati alla carica di presidente dell’Istituto tra cui un

candidato italiano che io ho veramente il piacere e l’onore di conoscere da molto tempo e di

averne verificato le qualità e le capacità. Io voglio assicurare che egli avrà tutto l’appoggio

delle autorità italiane non soltanto, come mi auguro, nella sua fase di elezione ma, soprattutto,

successivamente nella fase di attività dell’Istituto stesso.

Credo se mi consentite prima di fare alcune considerazioni su questa Tavola Rotonda

di rivolgere un caloroso pensiero al prof. Patrnogic che è recentemente scomparso. Io non ho

intenzione di fare delle conclusioni perché non voglio assolutamente rubare il mestiere al

presidente Veuthey e mi pare che già chi mi ha preceduto abbia in maniera molto compiuta

sintetizzato il lavoro di questi giorni. Voglio fare però alcune riflessioni soprattutto sugli

spunti di estremo interesse che questo convegno di esperti di diritto umanitario ha offerto alla

politica. È stato affermato che l’evoluzione del diritto umanitario sta conoscendo oggi, dopo il

1989 ma soprattutto, ancora di più dopo l’11 settembre un dinamismo sempre più accelerato.

La sorte e le condizioni di vita delle popolazioni civili che risiedono nei teatri delle crisi o delle

operazioni militari diventano sempre più un fattore che pesa e conta politicamente e credo che

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non potrebbe essere altrimenti in tutte le fasi in cui un intervento militare viene prima deciso,

programmato e poi attuato.

A ciò si aggiunga il fatto che le decisioni e le operazioni maturano in contesti complessi

con deliberazioni nazionali che vanno ad inserirsi in un quadro quasi sempre sopranazionale e

molto spesso multilaterale altrettanto accade per la fase attuativa delle operazioni che

implicano l’uso legittimo della forza. È quindi vero se noi affermiamo che il diritto umanitario

cresce di importanza man mano che diventa radicato nella coscienza civile il valore della pace

e della sicurezza per tutti, della pace e della sicurezza globale.

Credo sia fuori discussione insomma che oggi la tendenza ormai diffusa sia quella di

considerare la guerra in quanto tale un disvalore o al massimo in qualche caso un male

necessario. Il ricorso legittimo all’uso della forza quale necessità, strumento al quale fare

ricorso ma sempre in termini assolutamente selettivi e assolutamente rigorosi, è un tema dei

più attuali e la discussione che nei giorni scorsi è stata fatta circa l’uso legittimo della forza e la

sua proporzionalità andrà ad arricchire quel patrimonio che alla fine diventa patrimonio

comune di tutti e da cui noi possiamo attingere per le nostre decisioni.

Facevo riferimento prima al 1989 perché la caduta del muro di Berlino fa un pò da

spartiacque tra la situazione precedente ed i decenni di riflessione che sono seguiti sul tema

dell’uso della forza in riferimento a quella situazione e la situazione nuova che si era

determinata. In materia di difesa e sicurezza oggi i concetti sono completamente ribaltati

rispetto a quelli a cui per decenni siamo stati abituati a richiamarci. Le guerre asimmetriche

delle formazioni terroristiche e le risposte militari che la Comunità Internazionale ha fin ora

trovato sempre accanto all’iniziativa politica internazionale hanno offerto altra e nuova

materia di riflessione teorica e di applicazione pratica. Naturalmente è anche finita l’era della

guerra classica degli Stati fra eserciti regolari e tutto questo ha procurato, e imposto profonde e

decisive trasformazioni. Noi stessi abbiamo compiuto come Paese una svolta di tipo

prevalentemente professionale eliminando la leva. I militari di leva sono stati sostituiti non

tanto con dei professionisti stabili ma prevalentemente con dei volontari che

temporaneamente x un periodo da 1 a 3/4 anni svolgono una attività nelle nostre forze armate.

È stata una trasformazione per noi epocale del nostro strumento militare soprattutto se si

pensa che siamo impegnati in uno sforzo senza precedenti direi per quantità e rilievo politico

internazionale a mantenere e a portare avanti gli impegni che in campo internazionale ci siamo

assunti nei confronti della Comunità Internazionale nei vari scenari e teatri di crisi da quello

dei Balcani e dell’Afghanistan, a quello più recentemente del Libano ed è proprio in tali teatri

che noi verifichiamo la validità e l’importanza di quanto in questi giorni è stato discusso.

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È stato osservato anche questa mattina che la formazione del personale militare in

materia di diritto umanitario è compito dei singoli Stati e che ogni Stato agisce in maniera

differente, è chiaro quindi che sarà difficile ribaltare completamente questa situazione ma

credo che dovremmo comunque prendere atto del fatto che questo limita la capacità di

applicare in modo omogeneo, al di la dell’adesione dei singoli stati agli strumenti

internazionali, le norme scritte e consuetudinarie del diritto umanitario. Mi sembra però

maturo, e questa è la prima riflessione che faccio, il tempo in cui anche questa responsabilità di

formazione debba essere condivisa ad un livello sempre più alto, in particolare valorizzando le

sedi multilaterali della NATO ed ancor più dell’Unione Europea. È soprattutto l’UE, infatti,

che aumentando le proprie ambizioni di attore internazionale e di protagonista nella scena

globale dovrebbe farsi carico di elaborare al suo interno una dottrina operativa valida per tutti

i suoi membri, dottrina che io credo sarebbe esportabile anche a Paesi terzi o ad altre

Organizzazioni Regionali. Io credo che anche questo potrebbe essere un modo concreto, anche

se indiretto, di diffondere pacificamente valori quali il rispetto della vita umana e delle libertà

sociali ed economiche che sono il primo strumento della stabilità e della pace nelle società

avanzate sia economicamente che politicamente e istituzionalmente. Inoltre la formazione nel

diritto umanitario e nei diritti umani devono costituire una componente essenziale della base

morale ed istituzionale dell’addestramento dei militari di oggi chiamati non più e non solo a

vincere le guerre ma a difendere e stabilizzare ambienti difficili e molto spesso ostili.

Un altro punto su cui vorrei soffermarmi, oggetto anche di una vostra sessione,

concerne le normative nazionali e patrizie sul divieto di determinate categorie di armi; mi

riferisco cioè a quelle che hanno una nocività molto forte nei confronti delle popolazioni civili

ed in particolare alle mine antiuomo e alle cosiddette bombe a grappolo. Abbiamo esempi

concreti del loro utilizzo in Afghanistan ed ancora più recentemente in Libano, sono armi che

mettono a rischio concreto e per lunghissimo tempo la vita umana, l’economia, la possibilità

di una esistenza dignitosa delle popolazioni che sono state teatro di operazioni ostili, ci sono

terreni che non possono essere coltivati ed io vorrei rilevare in questo consesso come il nostro

Paese, da questo punto di vista, disponga di una legislazione all’avanguardia sia in particolare

per quanto riguarda la messa al bando della produzione, commercializzazione e uso delle

mine anti-uomo che, molto recentemente, per l’equiparazione sostanzialmente delle bombe a

grappolo alle mine antiuomo in modo che anche queste possano essere sottoposte a quei

divieti che sono in essere per le mine.

Avendo discusso con i nostri militari so che questo comporta problemi di operatività e

problemi anche tattici per quanto riguarda l’uso e la funzione delle nostre artiglierie ma io

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credo che noi dovremmo essere fermi su questi principi, non possiamo infliggere a delle

popolazioni il conflitto, la pena, i danni, i lutti del momento del conflitto e lasciare anche sul

terreno un seguito che poi continua per anni.

Infine e poi chiudo veramente vorrei riflettere sulla influenza e sull’impatto che hanno

i media nella rilevanza politica delle questioni concrete del diritto bellico e del diritto

umanitario. Oggi non c’è un evento che non sia ripreso, filmato e trasmesso a livello globale o

attraverso le televisioni o attraverso internet o molto più spesso attraverso entrambi.

L’opinione pubblica viene a conoscenza indiretta e vive con partecipazione le sofferenze delle

popolazioni dei Paesi e delle aree di crisi e di operazione militare; l’opinione pubblica globale

giudica quotidianamente l’operato delle parti combattenti e spesso il canone di giudizio è

proprio legato alla capacità o meno di interpretare in modo evolutivo il diritto umanitario,

comportamenti contrari al diritto umanitario, l’ambasciatore iracheno prima faceva

riferimento ad alcunio fatti specifici che sono avvenuti anche recentemente, provocano

profondi turbamenti nella opinione pubblica e nel grado di consenso politico dell’azione

intrapresa. A mio giudizio si può reagire a questa situazione in due modi: il primo modo è

quello di condannare l’attività dei media, è quello di cercare di mettere in campo forme di

comunicazione complicate e particolari che cerchino di contrastare la dimostrazione dei fatti;

il secondo modo invece consiste nel far si che questi fatti non vengano ripresi ed io credo che

sia questa la strada che noi dobbiamo percorrere. Io infatti sono convinto che in un Paese

democratico come l’Italia, dotato di forze armate che hanno nel loro DNA i valori della

costituzione nulla abbia da temere da questa situazione di sovraesposizione mediatica delle

operazioni di pace. È infatti sin dai tempi della prima missione in Libano nel 1980 che le

nostre forze armate hanno inaugurato un modello che va sotto il nome del generale Angioni,

un modello di relazione rispettoso e collaborativo fra militari e popolazioni civili che

promuove le ragioni del dialogo e ne fa uno strumento di maggiore efficacia del intervento

militare stesso, un modello che è stato e viene ancora studiato nelle accademie militari anche

nord americane e che mi auguro sia sempre più diffusamente imitato, sviluppato e adottato.

Voglio ricordare l’attività dei carabinieri italiani che, ad esempio, durante le crisi

balcaniche negli anni novanta hanno messo a munto il modello delle MSU, un modello volto a

conciliare le funzioni militari con le funzioni di polizia nelle aree post-conflitto. Questo

modello adesso è stato adottato nelle dottrine della NATO ed anche in quelle della difesa

europea, possiamo quindi dire facilmente che la speciale sensibilità e l’approccio militare delle

forze armate italiane anticipa e previene questioni di diritto internazionale umanitario e ne

rappresenta per cosi dire una applicazione preventiva ed avanzata. Si quindi al controllo

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dell’opinione pubblica, ad un’informazione garantita, pluralista e completa, a forze armate

sinceramente democratiche che pertanto non devono averne timore ma anzi devono

considerarlo come utile strumento che finisce per aumentare la consapevolezza della

responsabilità internazionale di Paesi avanzati come il nostro e funge da stimolo e coscienza

critica di tutti gli operatori a partire dai decisori politici.

Più informazione equivale a più libertà complessiva, nessuna vena d’ombra, nessuna

censura, la massima apertura e al tempo stesso maggior valorizzazione e riconoscimento del

ruolo delle forze armate nella odierna realtà della politica internazionale e nella progressiva

costruzione del diritto umanitario.

Io credo che i lavori di questa mattina e dei giorni scorsi abbiano dato sicuramente un

contributo importante allo sviluppo del diritto umanitario e di quei principi che noi tutti non

solo rispettiamo ma che auspichiamo siano anche diffusi. Come è gia stato detto non sarà

certo una Tavola Rotonda seppur cosi importante, cosi significativa come questa che

determinerà delle svolte ma io credo che le realtà si costruiscano a piccoli passi che messi

assieme poi formano la montagna. Usciamo di qui avendo tanto materiale su cui riflettere e da

digerire e io mi auguro che il prossimo anno, alla prossima Tavola Rotonda si possa prendere

atto che le considerazioni fatte quest’anno hanno trovato, magari in alcune parti, una loro

piena applicazione.

Grazie per la vostra attenzione.

Closing Remarks

Michel VEUTHEY

Acting President, IIHL

Monsieur le Secrétaire d’Etat, Excellences, Monsieur le Président du CICR, Monsieur le

Maire, Chers Amis,

A la clôture de cette 30ème Table Ronde marquant le 100e de la Conférence de la Paix de

La Haye et le 30ème anniversaire des Protocoles additionnels aux Conventions de 1949,

permettez-moi de vous remercier tous d’être venus à Sanremo pour contribuer au succès de

cette Table Ronde. Je voudrais remercier encore le Comité d’organisation de cette 30e Table

Ronde, et en particulier son Président, le Dr. Rolph Jenny, Vice-Président de l’Institut et

Président du Comité d’organisation de cette Table Ronde, ainsi que le CICR, en particulier le

Dr. Philipp Spoerri, Directeur, et M. Jean-François Quéguigner, pour ce débat juridique de

très haut niveau. Merci aussi au Secrétariat de l’Institut, qui, comme d’habitude, a fait des

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miracles avec des moyens limités. Merci au Maire de Sanremo pour son accueil, merci au

Président du Casino pour la très belle réception qu’il nous a offerte. Merci enfin aux

interprètes.

Permettez-moi un appel en conclusion de ces débats si riches sur des sujets complexes :

le droit humanitaire est, comme chacun le sait, constitué de règles écrites et coutumières. Ces

règles écrites et coutumières, comme on l’a vu, peuvent donner lieu à interprétation, à

discussion, à contradiction. Il est malheureusement parfois possible d’opposer la lettre à

l’esprit de ces règles. Comme le rappelait souvent notre ancien Président, le Professeur

Patrnogic, ce dont nous avons aussi et avant tout besoin, c’est de règles simples, aisément

compréhensibles, universellement applicables, qui rappellent l’esprit de ces règles complexes :

tout être humain, même ennemi, a droit à être traité avec humanité.

Nous pouvons envisager plusieurs suites aux débats de ces trois jours :

- la suite la plus évidente est que cette Table Ronde puisse encore donner lieu à

beaucoup de débats d’experts, militaires et juristes, sur la clarification des règles, tout comme

sur les méthodes et mécanismes pour les mettre en œuvre. L’Institut sera certainement

heureux d’accueillir ces échanges ;

- une autre suite sera de continuer à former tous ceux qui seraient amenés à mettre en

œuvre ces règles ; là encore, l’Institut de Sanremo est prêt à contribuer à cette entreprise, qu’il

assure depuis plus de trente ans, en collaboration avec les Gouvernements, les Académies

militaires, les organisations internationales, le CICR, les Sociétés nationales de la Croix-Rouge

et du Croissant Rouge, les universités (à commencer par celle de Nice avec laquelle nous

avons un accord de coopération, que nous serions heureux d’étendre avec d’autres universités

en Italie et ailleurs) ;

- une troisième suite serait de chercher ces règles simples, pratiques, communes,

acceptables par toutes les parties en conflit, qui assurent leur compréhension et mise en œuvre

dans les conflits contemporains par toutes les parties.

Que Sanremo puisse être un lieu de dialogue amenant experts juridiques et militaires à

se retrouver, pas seulement entre eux mais aussi avec ceux qui peuvent influencer les parties

en conflit à respecter le droit international humanitaire. J’entends par là les responsables

spirituels et religieux, les médias, les formateurs, auxquels il sera parfois nécessaire d’ajouter

des représentants des communautés locales ou des diasporas et d’acteurs économiques actifs

dans la zone de conflit.

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Que l’ « esprit de Sanremo », qui a permis l’adoption des deux Protocoles additionnels

à Genève en 1977, nous amène à élaborer des règles simples, compréhensibles et applicables

par tous et pour tous, à même d’ancrer à nouveau les principes du droit humanitaire dans la

conscience publique d’aujourd’hui, de montrer avec évidence que ce droit a ses fondements

dans toutes les civilisations et protège la dignité de chaque être humain.

Sur ce, je vous adresse à tous mes vœux et meilleurs messages.

ACRONYMS AP mines Anti-personnel mines AVM Anti-vehicle mines CAT Campaign against Terrorism CCW Convention on Certain Conventional Weapons CICR Comité International de la Croix-Rouge ERW Explosive Remnants of War GWOT Global War on Terrorism HRL Human Rights Law ICC International Criminal Court ICJ International Court of Justice ICRC International Committee of the Red Cross IIHL International Institute of Humanitarian Law IHL International Humanitarian Law LOAC Law of Armed Conflict MOTAPM Mines other than Anti-Personnel Mines MSU Multinational Specialised Units

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NATO North Atlantic Treaty Organization POW Prisoners of War RAF Royal Air Force ROE Rules of Engagement UN United Nations UNAMID United Nations-African Union Mission in Darfur